22 Pa. 416 | Pa. | 1853
The opinion of the Court was delivered by
On the 19th day of September, 1828, Matthew Jack made his will in writing, wherein, after certain devises to his
It is alleged that the late Judge Coulter took no part in the decision in consequence of having been the legal adviser of the testator, and a witness to the fact of republication, and that Mr. Justice Bell dissented from the judgment of the majority. The opinion of Chief Justice Hibson is also said to have been marked not to be reported, and is not to be found among the files of the Court. We lay these allegations out of view, because we have before us a copy of-the opinion duly certified by the prothonotary, on the 17th of November, 1851, and we recognise it as the opinion of the Court in this case. More than this: We entertain for it all the respect which is due to the distinguished judges who preceded us on this bench, and if a majority of the Court, as now constituted, cannot acquiesce in the conclusions of its learned author, it is not for want of a careful consideration of the reasons advanced in support of those conclusions. There is nothing in our office more pleasant than to follow in the path illuminated by that great intellect; but we are sometimes compelled to depart from it in order to get back upon the beaten track of the law. Notwithstanding the 6th section of the Act of 1705, republication of a written will might under that Act be proved by parol, so as to pass real estate acquired subsequently to the date of the will. Subscribing witnesses to the execution of the will were not required, and as publication might be proved by parol, so might republieation, for the rule was that the same solemnities but no more, were required to republish as to publish it: Havard v. Davis, 2 Binn. 415; Jones v. Hartley, 2 Wh. 103. And such was the law in England, until the 6th section of the Act of 29 Ch. 2, cut up parol republieation altogether; but this statute was never extended to Pennsylvania.
When Matthew Jack, therefore, made this will, it was capable of republieation by parol; and had he subsequently made another
As to the first of these propositions, it is doubtful whether the legislature meant more by the 13th section of the Act of 1833, than to re-enact the 6th section of the Act of 1705; and if this were all, the established construction would require us to say, that it does not prevent parol republication: Campbell v. Jamison, 8 Barr 498. But this point is not worth investigating fully, because we think Judge Gibson fell into error when he ruled that this will was within the Act of 1833. If that Act is not the law of this will, then it is immaterial whether the 13th section was intended as a re-enactment of the 6th section of the Act of 1705, or as an introduction of the 6th section of the statute of 29 Ch. 2. Is then this will within the purview of the Act of 1833 ?
In Mullen v. McKelvy, 5 Watts 400, the testator made his wilbefore the Act of 1833, and died afterward; and it was admitted that the execution of the instrument must be judged of by the law as it stood at the time of its execution, and not at the death of the testator. The same point was assumed in Murray v. Murray, 6 Watts 356. Now republication is part of the formalities of the instrument as much as publication is; and if signing, witnessing, and publishing the will, are to be judged of by the law as it stands at the time, it would seem very unreasonable to introduce a higher rule in regard to republication. Even the statute of frauds requires no more solemnities for republication than for first execution, and this has been the universal rule. In the argument of counsel- it is said that republication is the making of a new will, and it is insisted that the law at the time of the act done governs the act. If republication were indeed the making of a new will, it would doubtless be governed by the law of the time; but I apprehend republication is no more the remaking of the will, than publication is the making of it. Publication is necessary to the effect of a will, but we never say a devisee takes under the publication, but under the will; so republication is necessary to the effect of the will on after acquired land, but the devisee of such land takes under and according to the will itself. When a man republishes his will, the terms and words of the will are construed' to speak with regard to the pro
We cannot understand how, in view of these authorities, it was decided that this will was to be governed by the Act of 1833. Judge Gibson gives no reason except that the testator died after the Act, which we have seen was considered of no importance in Mullen v. McKelvy, and he cites no authority. The only authority cited by counsel, in support of his opinion, on this point, is that of Lewis v. Lewis, 2 W. & Ser. 456. There the will was executed in July, 1828, and revived by a codicil written on the same paper, in December, 1833, after the Act of 8th April, 1833, had gone into operation. Evidently forming but one instrument, as a will and codicil may, Carlton v. Griffin, 1 Burrows 546, they came necessarily within the Act, and the point ruled was, that the word “ obsolete,” written on the margin of the will, did not amount to a revocation of the will, because unattended by the attestation required by the Act. No question seems to have been made about that will being subject to the Act of 1833, and there was no question of republieation in the case. This case, it is manifest, does
Unsupported by authority, and in direct conflict with those to which we have referred, the opinion of Judge Gibson comes to us with something less than a binding obligation. Neither the maxim of stare decisis, nor the unfeigned respect entertained for our predecessor, nor our great reluctance to disturb the judgment settled in this very case, are reasons for our standing to an opinion which was itself a departure from the course of decision. We are, therefore, of opinion that this will is not within the purview of the Act of 1833, but is to be governed by the law as it was settled before that enactment, and that, consequently, the evidence of parol republication was improperly rejected.
But we intimated that if both the propositions of the opinion under review were admitted, they would not sustain the conclusion to which the Court attained when the cause was here before. If this can be demonstrated, we shall be right in reversing the judgment, even though wrong in all we have said hitherto.
Let it be granted, then, that this will is within the Act of 1833, and that the 13th section of the Act prohibits republication by parol. The 10th section of the Act, not noticed in Judge Gibson’s opinion, is in these words: “ The real estate acquired by a testator, after making his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will.” The legislature doubtless intended this to remedy a décision made only ten days before, in the case of Girard’s Heirs v. The City of Philadelphia, 4 Rawle 323, where it was held, for the first time in Pennsylvania, that real estate acquired after the making of a will does not pass under a general devise of the residue of the testator’s real estate without a subsequent republication of the will, even where the testator, in addition to the general devise of the residue, declares in a codicil that it is his wish and intention that all the real estate he shall thereafter purchase, shall pass by the said will. Pursuing the letter of the 10th section, it may be said there is in Matthew Jack’s will a general devise to his brother William Jack and his heirs, and there is no intention manifest on the face of the will that the real estate acquired after making his will, should not pass by that general devise. So far from manifestation of such intention, the words “rest and residue of my estate, whether real or personal, and everything at time of death I may be possessed of,” imports a plain intention to pass whatever he might acquire, as well as what he then had. If then this will be within the Act of 1833, why does not the 10th section apply ? It will not do to answer that this section was decided in Mulloch v. Souder not to be applicable to wills made before the date of the Act; because that decision proceeded on the ground that no such will is
That we may not be understood as deciding more than we intend, it is proper to add that we have not considered whether the evidence offered would amount to proof of republication. That it
Judgment is reversed and a venire de novo awarded.