23 Mo. 127 | Mo. | 1856
delivered the opinion of the court.
Mr. Butler, in a very able note to Coke’s First Institutes, (191, a,y after specifically pointing out the difference between the Roman and the feudal law, upon the subject of succession, to the estates of deceased persons, thus forcibly sums up the the contrast: “ By the Roman law, the heir was a person appointed indiscriminately by the law or the deceased to represent him, and, in consequence of that representation, was entitled to his property, and bound by his obligations. In the feudal law, the heir was a person of the blood of the ancestor, appointed by the original contract to the succession, and, in consequence of that succession, was supposed, more by the general
While the power of disposing of lands by will was exercised by means of uses, the will being considered the mere appointment of a use, it was holden that it could only operate on lands of which the party was possessed at the time, and could not affect any lands subsequently acquired; and the courts accordingly adopted the same narrow principle when they came to put a construction on the statute of wills ; and, therefore, although the idea of a real devise was, as Lord Mansfield remarked, (Cowper, 303,) derived from a Roman will, which was the appointment of an heir to succeed to the property and to discharge the obligations of the ancestor, including his testamentary donations, yet it was treated in the English law not like an English will of personal property, when the executor corresponds with the instituted heir of the Roman law, but as a particular conveyance of the lands embraced in it, and was subjected, in the particular now under consideration, to the rules applicable to such conveyances, instead of being treated as a testamentary disposition to take effect after the death of the disposer. It accordingly became a settled rule in the construction of the English statute of wills, that, if a testator devised all the real estate of which he should be seized at the time of his death, and after the making of the will he purchased lands in fee, such after acquired property, whether it was conveyed to the testator or to a trustee for him, did not pass by the will, but descended, as to the legal inheritance in the former case, and as to the equitable in the latter, to the testator’s heirs at law (1 Jarman on Wills, 85; Booker v. Cooke, 1 Salk. 237; S. C., 3 Bro. P. Cases); and the reason of this was, not on account of the intent on the part of the testator, but
Lord Mansfield once remarked, that common sense would never teach a man tbe difference between tbe testamentary gift of a horse and a house, and chat, originally, tbe construction might as well have been otherwise, but that it was then too well settled to be disturbed. Indeed, experience has at length taught tbe British nation that it had better have been settled otherwise from tbe beginning, as tbe construction given has been found to defeat tbe real intention of testators, and accordingly they have remedied tbe evil in 1 Vic. ch. 26, by providing that testators may dispose of all tbe real and personal estate to wbicb they may be entitled at the time of their death, and that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it bad been executed immediately before tbe death of tbe testator, unless a contrary intention shall appear by the will; and tbe result is, that tbe distinction in an English will between real and personal property, that was not obvious to common sense in the days of Lord Mansfield, is now abolished, and an English devise of land operates now as a will of personal pro
The Virginia statute of 1785 expressly extends the testamentary power, to. the real property which the testator may have at his death, and was followed in this particular in Kentucky and Illinois; and the result of the decisions in these states is, that after acquired lands pass, when such appears to be the intention of the- testator, although in Virginia they retain the rule adopted in England, that the words of the testator, in reference to his real property, are to be understood as referring to the time of the making of the will, unless a different intent appear. (Turpin v. Turpin, 1 Wash. Virg. Rep. 75; Harmon v. Allen, 3 Call, 297; Warner’s executors v. Swearingen and wife, 6 Dana, 200; Wells v. Watson, 4 Scam. 66.) The legislation in our own state has been somewhat peculiar. The first act upon the subject, passed in 1807, was copied from the Virginia statute of 1785, and confers, in one section, upon persons of full age, testamentary power over all real estate then owned, or which the testator may have at his death; and, in a subsequent section, confers testamentary power over the personal estate, in general terms, upon persons who are over eighteen years of age. The law so continued, without any change, until the revision of 1835, when, under the plan of revising
No doubt is entertained but that, under the act of 1807, after acquired real property would pass by will, whenever such appeared to be the intention of the testator. The reason why it did not pass under the English statute, was the want of testamentary power; and that power being expressly given by our original act, the objection was out of the way; and such seems to have been the construction given to the statute in Virginia, Kentucky and Illinois.
But the question is as to the construction of the present law. Must we hold that the act now in force does not confer testamentary power over after acquired land, and, on account of the change in the phraseology of the statute, which was made in 1835, go back to the construction put upon the original statute ? We think not. The language now used does not require such a construction at our hands. It is different from the language of the English statute of wills. The testamentary power is given here in general language ; it embraces both real and personal estate, and is a power to make a testamentary disposition of all the testator’s property, without any distinction between real and personal property, and not a mere power of particular disposition. It is more in the nature of a Roman will than an English devise of real property. But, however this may be, when we consider the' plan of revising that was adopted — the impolicy of creating changes in laws off daily practical importance — the little probability, when all around us were abandoning the old, narrow construction of the testamen
In this view of the subject, the question for our consideration is, what was the intention of the testator, fairly inferable from the will ? Did he intend to die testate as to all the property he should leave, or did he mean to embrace within his will such land as he then owned, together with all the personal property he might have at his death, and leave the real property he should subsequently acquire to go according to law ? No plain man, after reading the will, would hesitate a moment in answering this question; but it is said that we are bound by a legal rule of construction, which constrains us to consider a will in reference to the real property, when a contrary intent does not appear on the face of it, as referring to the time it was made, although, as to personal property, it speaks from the death. We all know that this is purely an artificial rule, and that, in a majority of the cases to which it is applied, it defeats the intention of the testator. Men know that their wills are not to take effect until they die, and they make them for the purpose of fixing the distribution of their property from that moment, and it was under this view of the subject that in the statute of 1 Vic. ch. 26, as well as in some recent American statutes, it is declared that the will shall be considered as speaking from the moment of the death of the testator, unless a contrary intention appear. But admitting, for the purpose