garet E. Taylor, her heirs and assigns, all of my estate, both real and personal.

"I nominate, constitute, and appoint my dearly beloved wife, Margaret E. Taylor, executrix of this, my last will and testament, and request that no bond be required of her as such."

Under the act of January 17, 1887 (24 Stat. at L. 361, chap. 25), it was provided that any will thereafter executed devising real estate in the District of Columbia, from which it should appear "that it was the intention of the testator to devise property acquired after the execution of the will," should be held to operate as a valid devise of all such property. This provision was superseded by sec. 1628 of the Code [32 Stat. at L. 545, chap. 1329], which became effective January 1, 1902, as follows:

"Any will hereafter executed which shall, by words of general import, devise all the estate or all the real estate of the testator, shall be deemed, taken, and held to operate as a valid devise of any real estate acquired by such testator after the execution of such will, unless it shall appear that it was not the intention of the testator to devise such after-acquired property."

The effect of the above section evidently having been brought to the attention of Congress, that body, by the act of June 30, 1902 (32 Stat. at L. 545, chap. 1329), amended the section to read as follows:

"Sec. 1628. After-Acquired Real Estate.-Any will executed after January seventeenth, eighteen hundred and eightyseven, and before the first day of January, nineteen hundred and two, devising real estate, from which it shall appear that it was the intention of the testator to devise property acquired after the execution of the will, shall be deemed, taken, and held to operate as a valid devise of all such property; and any will hereafter executed which shall, by words of general import, devise all the estate, or all the real estate of the testator, shall be deemed, taken, and held to operate as a valid devise of any real estate acquired by said testator after the execution of such will, unless it shall appear therefrom that it was not the intention of the testator to devise such after-acquired property."

The court below followed the ruling of this court in McAleer v. Schneider, 2 App. D. C. 461; Bradford v. Matthews, 9 App. D. C. 438; and Crenshaw v. McCormick, 19 App. D. C. 494, and held that the intent to pass property acquired after the execution of the will did not affirmatively appear from the terms of that instrument. The earliest of those cases was decided February 21, 1894. Hardenbergh v. Ray, 151 U. S. 112, 38 L. ed. 93, 14 Sup. Ct. Rep. 305, was decided January 3, 1894. That case arose in the State of Oregon, and the question in issue was whether after-acquired real estate passed by a clause in the will devising "all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the State of Oregon." The statute in force in Oregon provided that "every person of twenty-one years of age or upwards, of sound mind, may, by last will, devise all his estate, real and personal, saving to the widow her dower." The court stated that there were two questions for determination; whether, at the time of the execution of the will, the testator possessed testamentary power to devise after-acquired lands, and whether, if such power existed, the intention to exercise it was manifest in the will. Both questions were decided in the affirmative. The court held the devise to the testator's sister of all his right, title, and interest in and to all his lands, lots, and real estate lying and being in the State of Oregon or elsewhere, except as to specific devises, previously made, and also of all testator's personal property and estate, to be "sufficiently comprehensive to indicate an intention to pass everything of which he might die seised and possessed, both of real and personal property;" that this disposition of his estate was residuary in its character, and "utterly inconsistent with an intention to die intestate as to any portion of his estate, real or personal." The court made special reference to the case of Wait v. Belding, 24 Pick. 129, wherein it was said that "the term 'all my property' may as well include all which may be his at his decease, as all which is his at the date of the will; and will be construed to be so intended unless there are words in the description which limit and restrain it." The Supreme Court expressed the opinion

that the views advanced in Wait v. Belding were directly in point, and closed its opinion with the following: "It may therefore be laid down as a general proposition, that where the testator makes a general devise of his real estate, especially by residuary clause, he will be considered as meaning to dispose of such property to the full extent of his capacity; and that such a devise will carry not only the property held by him at the execution of the will, but also real estate subsequently acquired, of which he may be seised and possessed at the date of his death, provided there is testamentary power to make such disposition. 1 Jarman, Wills, 5th ed., 326, and other authorities cited."

In the present case there was undoubtedly testamentary power to dispose of after-acquired real estate, and tested by the rule above announced in Hardenbergh v. Ray, we think an intention to exercise that power clearly appears. The testator provided for his interment and for the payment of all just debts. He then devised and bequeathed unto his wife, her heirs and assigns, all of his estate, both real and personal. The will makes no distinction between real and personal property; and yet we are asked to hold that the testator intended to pass subsequently acquired personalty, and not subsequently acquired realty.

The language of this will being fully as comprehensive, and the intention to pass subsequently acquired real estate being fully as apparent, as in Hardenbergh v. Ray, this case is clearly ruled by that, unless it appears that by said act of June 30, 1902, Congress intended to prescribe one rule for the period intervening between January 17, 1887, and January 1, 1902, and a different rule thereafter. We do not think it does. Sec. tion 1628, as carried forward into the Code of January 1, 1902, apparently restricted the power to devise after-acquired real estate to wills thereafter executed. Congress, therefore, when its attention was directed to the matter, prefixed the exact language of the act of 1887 to the section, and thus made that act effective down to January 1, 1902. An examination of said. section, as finally amended by the act of June 30, 1902, we think fails to disclose any conflict between the two provisions

Dissenting Opinion.

[37 App. therein. The Supreme Court of the United States, whose decision was of course controlling in this jurisdiction, had held that a general devise of real estate would be considered a disposition of such property of the testator to the full extent of his capacity, including that subsequently acquired. The first part of the section conferred the power to pass subsequently acquired real estate, requiring only that the intent to do so should appear from the language of the devise. The second part conferred the same power, and expressly provided that certain forms of expression should be held to pass such estate unless a contrary intention appeared.

We conclude, therefore, that the language of this will passed subsequently acquired real estate. This disposes of the case. The decree is reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded.

Mr. Chief Justice SHEPARD, dissenting:

I cannot concur in the decision which overrules three former decisions of this court. McAleer v. Schneider, 2 App. D. C. 461; Bradford v. Matthews, 9 App. D. C. 438; Crenshaw v. McCormick, 19 App. D. C. 494. The near approach of the summer recess permits but a brief statement of my reasons. The statute 32 Hen. VIII. prevailed in this District without qualification until the act of Congress of 1887. The settled rule was that under this statute a will devising land (regarded as a conveyance) spoke from the date of its execution, and not from the death of the testator. Consequently, it did not pass after-acquired lands. This statute, the construction of which was founded on the ancient rule as to seisin that has long since passed away, has been amended or changed in our States in varying forms of language. Such statutes have always been interpreted with more or less liberality. The old statute was advisedly changed in England by the statute of 1 Victoria, chap. 26, which declared that wills of real estate shall be construed to speak and take effect as if executed immediately before the death of the testator, unless a contrary intention shall appear by

the will. Under that statute this will would undoubtedly pass the after-acquired land. The act of Congress of January 17, 1887, making the first change in the law of this District, was essentially different in its language. By it a will devising real estate operates as a devise of lands acquired after its execution, if it shall appear therefrom "that it was the intention of the testator to devise property acquired after the execution of the will."

In Bradford v. Matthews, 9 App. D. C. 438, the language of the will was as broad in its terms as the will in the present case. In holding that the intention was not expressed under the statute, Mr. Chief Justice Alvey said (p. 443): "It is not necessary that there should be express terms employed in the will, in order to carry after-acquired real estate. But there must be either express terms employed or such reasonable intendment or implication from the context of the whole will as to leave no reasonable doubt as to the intention of the testator. [Citing and quoting from Wilkins v. Allen, 18 How. 385-392, 15 L. ed. 396-399.] "The intention must be manifest, and rest on something more certain than conjecture. The court must proceed on known principles and established rules, not on loose conjectural interpretation, nor considering what a man may be imagined to do in the testator's circumstances. *' As will

**

be observed, there is nothing in the provisions of the will referred to that would furnish the slightest intimation that the testator intended the will to operate upon after-acquired real

estate.

"The language employed is quite applicable to the real estate of the testator owned by him at the date of the will, and it is no more comprehensive than that which would or might have been used if he had intended only to devise what he then owned, or possessed. There is therefore no reasonable ground furnished by the context of the will for extending its provisions. to after-acquired real estate. The terms of the will are fully gratified by the property owned by the testator at the date of the will, and there is nothing that justified the supposed implication that it was intended to have a larger operation, so as to