13 Gratt. 128 | Va. | 1856
By the eleventh section of chapter one hundred and twenty-two of the Code of 1849, it is declared that a will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. And as the will, on the construction of which the right to the land in controversy depends, was admitted to probat in 1852, some question might have arisen as
The English rule, that as to lands the testator speaks at the date of his will, and as to personals, at his death, had not been subjected here, prior to the adoption, of the Code, to any legislative change other than that made by the act of 1785. That act directs, “that every person, &c. shall have power, &c. to devise all the estate, &c. which he hath, or at the time of his death shall have, of, in or to lands, &c.” In the case of Allen v. Harrison, 3 Call 289, the extent of the change, in the old rule, contemplated by that act, was the subject of a very full examination; and the court were unanimous in the opinion that the act only gave a power to devise after acquired lands, leaving it to the discretion of the testator to dispose of them or not: That in order to produce that effect, there should be something indicating an intention to exercise the power; and that where there was nothing in the language of the will to show that the testator evidently contemplated a disposition of his after acquired lands, a devise of his lands should be held to refer to the lands owned by him at the date of his will. The same interpretation of the act must have also prevailed in the case of Bagwell v. Elliott, 2 Rand. 190 ; and was fully recognized by the Supreme court of the United States in the case of Smith v. Edrington, 8 Cranch’s R. 66.
Though it be conceded, therefore, (as I believe it must,) that in a majority of the states whose statutes of wills are, in the particular in question, like our act of 1785, the decisions have gone far towards abolishing the old English rule, and though now, by statute, in England, (1 Viet. ch. 26,) as well as here, a devise of lands, like a bequest of personals, is made to speak as if executed immediately before the death of the testator ; Yet as the authority of Allen v. Harrison has not, (so far as I have seen,) been ever questioned, but, on the contrary, stands supported by the decisions of a sister state, where our act of 1785 has been, in terms, adopted, I feel no hesitation in coming to the conclusion that the will in this case must be interpreted under the rule which holds the testator, no contrary intention appearing, as speaking in respect to his lands at the date of the will.
Applying to the will this test, I have been unable tq discover, in its terms, any thing to raise a serious doubt as to the propriety of the interpretation which the Circuit court has given to it. The words “ every
It does not seem to me that the fact that the testator, subsequently to the date of his will, erased the name of Henry E. Scott, and substituted that of John E. Mason, as his executor, is of any value in the controversy. The date of this alteration is not fixed by the verdict; it is only found to be “ subsequent to the original writing of the will.” And as the verdict finds that the testator was on terms of intimacy with Scott up to the time of his (Scott’s) death, which occurred in February 1847, the probability is that the change was made soon after Scott’s death, and before either the adoption of the Code or the purchase of the land, which occurred in March 1849.
I think that the judgment ought to be affirmed.
The other judges concurred in the opinion of Daniel, J.
Judgment affirmed.