American Baptist Missionary Union v. Peck

10 Mich. 341 | Mich. | 1862

Christiancy J.:

The will here in question was executed on the eleventh day of April, 1853, and contains several bequests or legacies, exceeding one hundred dollars each, to each of the following parties: The American Baptist Missionary Union, The American Baptist Home Mission Society, The American Bible Union, The Baptist Convention of the State of Michigan, The American Baptist Publication Society, and The American Tract Society. The testator died on the 19th day of January, T859. The will was not republished by the testator after the passage of the “Act concerning Churches and Religious Societies,” &c. (Comp. L. §§ 2009 to. 2036), and is witnessed by two subscribing witnesses only.

The Circuit Court, on appeal from the Probate Court of Jackson County, determined that, as to so much of the will as contained these bequests or legacies, the will had not been sufficiently proved; and to this extent disallowed the same. The case is brought to this Court by writ of error upon a finding' of facts by the Circuit Judge, and exceptions to the conclusions of law upon such finding.

The whole question depends upon the construction to be given to the 25th section of the “Act concerning Churches and Religious Societies,” &c (Comp. L. § 2033). And the question is, whether this section was intended to embrace wills made or executed prior to the statute, or only those which should be thereafter executed. The power of the Legislature to affect wills previously executed, but which had not yet taken effect by the death of the testator, can not be doubted; if such was the intention of this statute, then, as to these legacies, the will must have been executed in the mode prescribed_ by this section, and three subscribing, witnesses were required to render these legacies valid: otherwise the whole will would stand upon the general statute of wills, with which its execution conformed — two witnesses only being required.

The 24th section of the act (Comp. L. § 2032) is confined to devises, gifts and bequests “hereafter made or attempted to be made by last will or testament ” — “ which shall be made or purport to be made, directly or indirectly to, or for the use of any church, congregation, religious order or religious society, or to or for the use of any ecclesiastical, educational or eleemosynary institution connected or to be connected with, or under the control or direction of, any church, congregation, order or society, or under the control or direction or subject to the visitorial power of any officer or officers or other authority of such church, congregation, order or society, in his, her or their official or ecclesiastical capacity.”

The 25th section is in the following words: - “ Every gift, bequest, legacy or donation of any money or personal property, to the amount of one hundred dollars or more, hereafter made or attempted to be made, by last will or testament, to or for the use of- any or either of the parties, or for any or either of the purposes mentioned in the last preceding section, shall be utterly void, if such last will or testament shall be made during the last sickness of the testator or testatrix; and no gift, bequest, legacy or donation of money or personal property, to the amount of one hundred dollars or more, shall in any case be valid, if made by the last will and testament, unless such last will and testament shall be proven in open Court by the testimony of three subscribing witnesses, nor unless it shall clearly appear by the testimony of said witnesses, that the whole will was read to or by the person executing the same, in their, presence, and fully understood by the testator before the execution thereof, and that the same was executed at the time when it bears date.”

It will be seen that the twenty-fifth section prohibits certain gifts, bequests and legacies of money or personal property being made by -will during the last sickness of the testator, and that it expressly refers to the 24th section for the description of the parties to whom, and the purposes for which such legacies are forbidden to be made during such last sickness; and that this provision is confined to “gifts, bequests, legacies and donations hereafter made or attempted to be made by last will or testament.” We think it very clear that neither this provision, nor the 24th section, was intended to affect any will previously executed, whether the testator was then alive or not: for though this language might be susceptible of a slightly different meaning from that of “a will hereafter made,” yet the words “hereafter made or attempted to be made” we think were intended to refer rather to the act of the testator than to the taking effect of the will by his death.

But the counsel for defendants in error insist that, even admitting this view to be correct, yet the subsequent provision which is particularly applicable to the present case, has no such limitation; and this .is the point upon which they seem mainly to rely.

The language is, “and no gift, bequest, legacy or donation of money or personal property, to the amount of one hundred dollars or more, shall in any case be valid, if made by last will and testament, unless,” &c. It is true this language is general, and, if taken literally without reference to the subject matter, the general objects and scope of the act, would apply to all wills giving legacies to that amount to any person or for any purpose whatever. But on looking to the whole scope and object of the act, it is quite manifest such was not its object, and that to .give it this construction would be an entire departure from the purpose which the Legislature had in view: it would in fact bring the act, or, at least this provision, in direct conflict with the Constitution; as a provision of this kind, applying to all wills generally, would have no connection with, or relation to, the objects indicated by the title of the act.

The counsel for the defendants in error not only admit, but insist, that the provision can not have this extent of application, but they urge that the “gifts, bequests, legacies,” &c., here mentioned, must be confined to those of the same character specified in the former part of the section, as to the parties to whom, and the purposes for which they are made; but that the qualifying words, “ hereafter made or attempted to be made,” do not apply to these latter bequests and legacies.

After a careful examination we are entirely satisfied, that the “gifts, bequests, legacies,” &c., last mentioned, are the same gifts, bequests and legacies mentioned in the former portion of the section. By the first provision of the section they are to be void, if made during the last sickness of the testator: by the last provision they are to be void whether made during the last sickness or not, “unless suoh last will and testament shall be proved in open Court by the testimony of three subscribing witnesses,” &c. We can therefore see no plausible ground for holding that the terms “hereafter made or attempted to be made,” do not apply equally to the “gifts, bequests and legacies” mentioned in both the provisions of the section. The latter provision is to be read as if the word such were inserted, so as to read, “and .no such gift, bequest, legacy, &c.” The word such would seem to have been omitted by accident, probably in copying or printing. The Legislature of 1859 amended the section by inserting it (.Laws 1859, p. 449). But the amendment was unnecessary, as the act, without it, was susceptible of no other rational construction.

The necessary conclusion is, that this will does not come within the provisions of the act in question; and having been duly executed and witnessed under the general statute of wills, and proved by the two subscribing witnesses, it should have been allowed as a whole. That part of the judgment or determination of the Circuit Court which disallowed the will as to the legacies in question, «must therefore he reversed, and a judgment or decree of this Court must be rendered, upon the facts found by the Judge, allowing and establishing the whole will; and the plaintiffs in error must recover their costs of both courts.

Manning and Campbell JJ. concurred. Martin Ch.- J. was absent when the case was heard.