Lesher v. Wirth

14 Ill. 39 | Ill. | 1852

Catón, J.

I think the case before us is clearly within the policy of the law, and the piischief designed to be remedied by the legislature, and this is certainly one important step gained in arriving at the true construction of a statute. But it is said, and with truth, that the provisions of this fourth section do not in terms apply to the family and estate of a female intestate, and but for other provisions of our statutes, it might be difficult to apply it to such a case. This act of the 21st of February, 1845, in which this fourth section is found, is, and professes in its title to be, an amendment to our statute of wills, and the rules prescribed for the construction of the statute of wills, apply to the amendatory act. The seventy-sixth section of the statute of wills provides as follows: “And whenever any party in the singular number, ora male party is mentioned, the rule shall apply to a female or two or more having a joint interest, so far as the rule can be with propriety applied, and so far as is not otherwise directed.” And the twenty-eighth section of the ninetieth chapter of the Revised Statutes provides: “When any party or person is described or referred to by words importing the masculine gender, females as well as males, shall be deemed to be included.” By referring to the preceding and subsequent sections of that chapter it will be seen, that the rules of construction there given, are designed to apply not only to the Revised Statutes, but to all others, whether antecedent or subsequent statutes. By these rules of construction thus positively given, we are required to read the feminine pronoun instead of the masculine, -whenever it occurs in this fourth section, if there is no impropriety in applying the rule. If it be true that we advance the remedy and repress the mischief in the contemplation of the legislature when the law was made, by applying this rule of construction, then certainly there is no impropriety in making the application, but on the other hand there is a most manifest propriety in doing so. And we cannot, -without imputing to the legislature the design to make a most arbitrary and unjust distinction, entertain a doubt that, but for the rule of construction thus previously given, they would have used words in the statute itself which would have included both male and female intestates. Indeed, it seems to me that the whole question in the code must turn upon the inquiry, Whether from the nature and character of the provision, there is a propriety and fitness in applying it to the children and estates of female as well as male intestates ; and if that is conceded or shown, the law is as positive as the legislature could make it, that it shall have such application. I have yet to hear the first reason suggested which I am capable of comprehending, why there is not as much propriety and fitness and justice in making a provision for the children Of a, female, as of a male intestate. We are not so to stick in the bark of a statute, and adhere to its literal expressions, as to impute to the legislature an arbitrary and senseless discrimination, when by a more penetrating and enlarged view of the legislative design, we are enabled to perceive a manifest justness and equality in the law. But in this case, when the law and the rules given us for construing it are taken together, no violence is done to the language of the law itself, in arriving at what I think was the policy and design of the legislature.

The judgment of the circuit court is affirmed.

'Treat, C. J., dissented.

Judgment affirmed.

midpage