75 Pa. 503 | Pa. | 1874
The opinion of the court was delivered, July 2d 1874, by
The first question which requires our consideration in this cause is whether the complainants in the bill filed below had any standing in court. They claimed as the heirs at law and next of kin of Samuel Hegarty, deceased, and as such entitled to a reversionary interest in the property in question. Their title depends upon whether they are or are not concluded by the probate of his will, and the lapse of five years without caveat and action at law under the Act of April 22d 1856, sect. 7 (Pamph. L. 533), from setting up the invalidity of the devises and bequests therein made to the United Presbyterian Church of North America.
By the eleventh section of the Act of April 26th 1855 (Pamph. L. 332), it is enacted “that no estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will attested by two credible and at the time disinterested witnesses, at least one calendar month before the
The words of the eighth section of the Act of 1856 are “ that the probate of the register of the proper county of any will devising real estate, shall be conclusive as to such realty, unless within five years from the date of such probate, those interested to controvert it, shall by caveat and action at law, duly pursued, contest the validity of such will as to such realty.” This language is certainly very broad and comprehensive, and if construed literally would include a devise of realty invalid for any cause whatever, though appearing upon the face of the will itself, for example, a bequest or devise for an immoral or unlawful purpose, or where there is a limitation to take effect beyond the period prescribed for prevention of perpetuities — or a clause restraining alienation by a devisee in fee, and many other similar cases which might be enumerated. In all such cases the devise or provision is pronounced to be illegal and void, and has never been supposed to prevent probate of the whole will. In the language of the English decisions, such questions are referred by the courts of probate to the courts of construction. It has not been and cannot be contended that the legislature designed to reach and conclude such questions. Looking at the old law and the mischief, we think it clear, that the remedial operation of the act should be confined to that mischief. The law undoubtedly was, that while the decree of a register or a register’s court unappealed from admitting a paper writing to probate, conclusively established it as the will of the testator, not to be ever after drawn in question in any other court or proceeding as to the personal estate bequeathed or disposed of therein, it was only primá facie evidence as to realty. At any period, then, apart from the bar produced by adverse possession for twenty-one years, by the Statute of Limitations, it was competent for any party in an action of ejectment or other proceeding to contest, not merely the factum of the will — its due and legal execution, but every other question which might be raised before the register, such,as mental incapacity, fraud, duress or undue influence, and this, at a time when from the death of wit
This was considered and must be admitted to have been a serious mischief. “ The' main purpose of this section,” said Mr. Justice Woodward in Kenyon v. Stewart, 8 Wright 189, speaking of the Act of 1856, “ was to give to the probate of wills, after five years, the same conclusive effect as to real estate, which it has always possessed in England and here, in respect to personal goods. Though held to be primfi facie evidence of title, the probate with us has been open to contest indefinitely, or at least for any time short of the period at which the common law would set up a conclusive presumption in its favor. This was the mischief the statute meant to remedy. Innumerable titles throughout the Commonwealth depended, and always will depend, on the probate of wills. That probate, the foundation of so many titles, we treat as a judicial decree, and the legislature thought there ought to be a. time when it should be no longer questionable. The act of which this section is a part was planned to assure the people of greater certainty of title, and to make them more secure in the enjoyment of real estate. It is founded on highest considerations of public policy. It is a statute of peace, security and repose. It is entitled, therefore, to a liberal construction from the courts.”
If, then, the intention of the act was simply to put probates of wills as to realty after five years upon the same footing as probates of wills of personalty, let us consider the effect of such a probate upon the question of- such an objection to validity as is here set up. If the probate as to a bequest of personalty to religious and charitable uses made less than a calendar month before the death of the testator, will not prevent the next of kin or residuary legatees from raising this contention, neither ought it to have that effect as to realty after the lapse of five years, without caveat and action at law. What is the jurisdiction of the register ? It may be conceded that his adjudication as to all matters within his jurisdiction is conclusive, if unappealed from within the time allowed bylaw. By the Act of March 15th 1832, sect. 5 (Pamph. L. 135), he has jurisdiction of the probate of wills and testaments. By the thirteenth section of the same act, “ it is provided that whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof, any matter of fact touching the validity of such, writing, it shall be lawful for the register, at the request of any person interested, to issue a precept to the Court of Common Pleas of the respective county, directing an issue to be formed upon the said fact or facts, and also upon such others as
But in Price v. Maxwell, 4 Casey 23, which- arose under this very Act of 1855, in a will both of realty and personalty, it was not suggested that the probate was conclusive as to the personalty, but the devises and bequests to a charity were both pronounced invalid upon a bill in equity in this court. Such was the fact also in McLean v. Wade, 5 Wright 266, an action of debt brought to
In England there are many cases of wills of personal estate, admitted to probate in the Ecclesiastical Court, in which particular dispositions have been subsequently adjudged to be invalid on other grounds than that they did not truly express the will of the decedent.. Thus in Shanley v. Baker, 4 Ves., Jr. 752, which was a bequest of a leasehold estate to a charity, it was held to fall under the statute upon that subject in England, 9 Geo. II., c. 86, and to pass under a general disposition of the residue. To the same effect is Page v. Leapingwell, 18 Ves. 463. These eases are not strictly analogous, because all gifts to charities by 9 Geo. II. had to be by deed executed twelve calendar months before the death of the testator, and without power of revocation. We are without any direct decision, as far as I can ascertain, but these cases all seem strongly to show that professional opinion sustains the view that the jurisdiction of the register in the probate of wills is confined to the question, whether the paper has been properly executed according to law, and is in point of fact the will of the alleged testator, leaving all other questions to subsequent decision if they should afterwards arise. We consider this doctrine as most in accordance with general principles, as well as the provisions of our statutory system.
A suggestion has been made to me by an eminent member of the Philadelphia Bar, with whom I conversed upon this point, and which, as it may occur to other minds, I deem it proper to notice. It is, that the statute raises a presumption juris et de juref of either-the mental incapacity of the testator, or of undue influence over him exercised by ministers of religion or others to produce the feeling that he might propitiate the Divine Being by appropriating his property to charitable or religious uses, and this often with great injustice to his family. In this view it might be held strictly to fall within the jurisdiction of the register. No doubt the legislature may have been influenced by such considerations in passing the act, which is -not founded upon a general policy of striking down all gifts to such uses, but only such as may be made within a calendar month of death, most generally, therefore, in the last sickness, a period of mental weakness produced by bodily weakness, and when the mind, -through the fear of death and the unknown hereafter, is more than ordinarily susceptible to such influences. There are arguments also drawn from the expediency of having all such questions speedily settled, and not postponed to a remote period, which strongly plead in favor of any view which would give this construction to the statute. Yet it seems to us too subtle a refinement to suppose that the legislature meant to create such a presumption. The act establishes an unbending rule, fixes an arbitrary period, and enacts that such dispositions of property,
It has been contended also, that the Act of 1856 is to be regarded as a statute of limitation, applicable to all real estate devised by will. But statutes of limitation affect the remedy, not the title. This statute lays down a rule of evidence, making a judicial decree which was before primá facie evidence only, after the lapse of five years without caveat or action at law duly pursued, conclusive. There are many other difficulties which stand in the way of regarding it as a statute of limitation. No reference to entry is made, and those interested to contest the disposition may have no right of entry during the five years by reason of a valid life or other less estate interposed. They may be in possession themselves. It has been held by this court that there are no exceptions to be implied to save the rights of persons laboring under disabilities: Warfield v. Fox, 3 P. F. Smith 382. There-are undoubtedly practical difficulties in the construction of the words “ caveat and action at law duly pursued,” but either the exceptions must be implied to save the rights of those in possession, or whose right of entry has not accrued within the five years, or perhaps a form of action under the statute might be supported to decide the right. These difficulties must be left to be disposed of when they are presented.
It results, if this course of reasoning be sound, that the dispositions of the will of Samuel Hegarty, deceased, in favor of religious and charitable uses are void;.that as to the property so disposed of he died intestate, and upon the death of his widow, it will pass to the plaintiffs below. They have a valid legal title to the reversion. As to them the executor of the will is an entire, stranger. Can the legislature, then, without my consent, confer upon such an entire stranger to me a power to sell my property and to hold the proceeds as a trustee for me ? Ervine’s Appeal, 4 Harris 256, and Kneass’s Appeal, 7 Casey 87, answer this question unequivocally in the negative. They certainly settle that the legislature had" no power to authorize the sale of the property of parties sui juris and seised of a vested estate in the premises against their consent. It is true that several of the plaintiffs below were married women, but they were not minors, and with the consent of their husbands in the mode provided by law had full capacity to dispose of their property. The case, then, is
Decree affirmed, and appeal dismissed at the costs of the appellant, to be paid out of the estate in his hands.