15 Pa. 471 | Pa. | 1851
The opinion of the court was delivered by
In the view taken of the case, it is a matter of no moment whether the property in question he considered as real or personal estate. Taken as either one or the other, the legacies lapse, and consequently the judgment must he reversed. Before the act of 1810,'a legacy even to a child or other lineal descendant lapsed by the death of the legatee or devisee. This, which was supposed to disappoint the intention of the testator, was remedied by that act. But this did not extend to a devise or bequest to a collateral relation, as to a brother or nephew; and consequently, under that act, this case would not admit of a question. But by the act of the 6th May, 1844, Dunlop 922, the legislature further provided that no devise or legacy hereafter made in favor of a brother or sister of any testator, such testator not leaving any lineal descendants, shall be deemed or held to lapse, or become void, by reason of the decease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator; but such devise or legacy shall he good and available, in favor of such surviving issue, with like effect as if such devisee or legatee had survived, saving always to any testator the right to direct otherwise.
■ In the case in hand, the will was executed before the act of 6th May, 1844, but the testator died after the passage of that act. The question is, did the legislature intend that the act should operate on wills executed before its passage, the death happening after, so as to change, by the construction, the legal intention of the testator ? For I agree, if this intention clearly appear, it must be so construed; it would interfere with no vested right, as the testator is saved the power of directing otherwise. It, however, strikes me, that the intention must be most clearly expressed", in language which it is difficult to misapprehend; and such is the doctrine held in Mullock v. Souder, 5 W. & Ser. 198. Mr. Justice Sergeant says, a retroactive effect will not be given to a statute unless such appears expressly to he the design of the t-estater. Mullock v. Souder, it is true, is the case of real estate; and as this is assumed to he personal property, it does not in terms rule this
I do not put the case on the actual intention of the testator, hut on his legal intention, which is the only safe rule. That the testator permitted his -will to stand without alteration for several years, or that he may have known of the act of 1844, is nothing. It is a question of construction, depending on certain fixed principles, which ought not to be varied by fancied speculations as to the knowledge or ignorance of testators, some of whom may, or others may not know of the statute and its legal construction.
Judgment reversed, and judgment for Thomas Martindale and wife for one-seventh of the balance, and for Jonathan Warner for one-fourth of one-seventh part of the proceeds of the estate.