98 Tenn. 535 | Tenn. | 1897
This is a controversy as to the will of Nancy 'B. Mitchell, deceased, which, on an issue of devisavit ml non, was tried in the Circuit Court of Giles County, resulting in a verdict in favor of the contestant of the will and a judgment of the Court setting the will aside. The proponent appealed in error, his motion for a new trial having been overruled by the Circuit Judge. The question involved in the- case is whether the will of a married woman, executed at the time she had no power to make a will, becomes validated and made a legal will, without any re-execution or republication, in consequence of a subsequent statute empowering her to make a will, but after the passage of which nothing was done by her about it, save to speak of it as an existing instrument of hers, and retain and treat it as such. This question, in various forms, was presented in the record —in making up the pleadings, in excluding evidence, and in' the charge of the Court. The forms in which it was presented are not material to be further considered. The same question was presented in all. The ruling of the Circuit Judge was that the will was not a legal will, and this resulted in the verdict and judgment already stated. The facts of the case are as follows:
On June 2, 1866, Nancy B. Mitchell, then a
The contention for proponent was that after the Act of March 2, 1870, took effect, which gave her power to' make a will, she retained the will already made in her possession, and treated it and spoke of it as her will, and he insists that when she died, in October, 1893, the will was then a legal will by reason of the operation of the statute embodied in the Code at §2195 (Shannon’s Code, §3927). That section is as follows: “A will shall be construed, in reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testa
The true rule, we think, is correctly stated in Schouler on Wills, Sec. 11. The Section is entitled, “Effects of Subsequent Statute upon Wills,” and is as follows: “The will, it is said, does not take effect, nor are there any rights acquired under it, until the death of the testator. And its construction and validity depends upon the law as it then stands. Hence, it follows that a statute passed after the making of the will and before the death of the testator, by which the law is changed, takes effect upon the will. Nevertheless, such retroactive effect should not be given by such later statute to an earlier will, as to render, by the mere force of a new rule of construction, a different disposition under that will from what the testator obviously intended, especially if the legislation manifested no retroactive intention.
“On the other hand, however it may be as to the legal operation of a valid will upon one’s prop
To the same effect are other authorities. In a case of the execution of a will by a person not of testamentary capacity, necessary to the making of a legal will, republication is essential to its legality. There is some little confusion on this subject, which has, perhaps, arisen by confounding the terms ‘ ‘ validity ’ ’ and ‘ ‘ legality, ’ ’ by confounding the £ ‘ want of testamentary capacity” with the effort of a competent testator -to devise or bequeath property, by a will regular in form, but not valid in effect.
We think the true rule clearly -deducible from the authorities, is, that if there be a want of testamentary capacity at the time of the execution of the will, such will never takes effect, or, rather, is not so made and executed as to take effect without republication, although a statute giving testamentary capacity should be subsequently passed; but that a will which was legally executed, by a person having-testamentary capacity, which attempted to pass property not then effectually devised or bequeathed, and
The judgment is therefore correct, and must be affirmed with cost.