6 Cal. 621 | Cal. | 1856
Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
It will be unnecessary, for the purposes of this decision, to pass upon many of the arguments so ably adduced by the respondents, in favor of the judgment below, as we are satisfied that the case must go off on a preliminary point of jurisdiction, leaving the parties to their remedy at law or in equity, as the case may be, on its final merits.
It will be observed that the will became executed by the death of the testator, in 1848, prior to the passage of the Statute of Wills, or the adoption of the State Constitution. Not only does the statute fail to require wills, executed before its passage, to be probated, but, on examination of the different sections of it, we are forced to the conclusion that
When we reflect that the laws of California did not require a will to be probated, and that numerous rights had grown up under this system, it cannot be supposed, in the absence of some provisions to that effect, that the Legislature intended to unsettle these rights or open them afresh.
It is said that, if a resident of California had made a will prior to 1850, and died subsequent to that time, he would be deprived of his right to dispose of his property by devise, under this construction. The answer to this is, that the will is not executed, or does not take effect, until the death of the testator, and this same answer will apply with equal force to several of the respondents’ arguments. The Probate Court is an inferior Court, and therefore cannot take jurisdiction or administer remedies, other than those given, and in the manner provided by the statute.
The law in this ease contains no 'words which would justify us in giving it a retrospect beyond its passage; and it is well settled that, in the absence of express words to that effect, a law can only operate upon future, and not upon passed transactions. If the Legislature had intended that these instruments should be probated, it would doubtless have adopted some rules upon the subject, as it did in the ease of deeds and conveyances made before the passage of the Recording Act. It was doubtless deemed unwise to subject them to a new test or scrutiny, and they were left to stand or fall, according to their validity. In fact, by the decision of this Court, in the ease of Castro et-al. v. Castro, April Term, 1856, it was determined that a will rested upon the same basis as a conveyance, and operated as a deed, unless in case of some express statute requiring it to be probated, and that such a proceeding as the probate of a will was unknown in California.
From the foregoing, it results that the Probate Court had no jurisdiction, that its judgment is a nullity und must be reversed.
