1 Grant 75 | Pa. | 1854
The opinion of the court was delivered by
— The 6th section of the Act of 1705 does not differ from the 13th section of the Act of 8th April, 1833, in any matter material to the question of republieation. The commissioners on the civil code, in reporting the latter, speak of it as nearly a literal transcript “ from the former, excepting the correction of a mistake, not material to the present question.” 2 Park & Johns. 876. The Act of 1705 contains the words, “repealed, altered or changed;” the Act of 1833 uses the words, “repealed or altered.” The omission of the word “changed” was proper, because it was but a repetition of the idea expressed by the word “altered.” So that the material words in both statutes are precisely the same, and the re-enactment of them must be understood as a legislative enactment of the construction which they had previously received by the solemn adjudications of the courts. What was that construction ? It was that these words referred to an alteration or revocation of the body of the will, and not to such acts as brought other subjects within its operation without, in any respect, altering or repealing the instrument itself. Hence it was decided, in 1810, that these words did not prevent the proof, by parol evidence, of the republieation of a will. Havard v. Davis, 2 Bin. 406. The same point was ruled in 3 Wash. C. C. 481. In Jones v. Hartley, 2 Wharton, 103, the case in 2 Bin. 406, was cited by the court as authority, and it was emphatically declared, that “it must be considered as settled, that parol evidence of republieation of a will is proper in Pennsylvania,” and that “it is not an open question now.” In Campbell v. Jameson, 8 Barr, 499, the same principle was reaffirmed, and it was added that there was nothing in the Act of 1833 to interdict such republieation by parol. So far from interdicting such evidence, it might have been held that the Act of 1833 was a legislative sanction of the construction which had been given to the same words in the Act of 1705, in relation to the same subject-matter, permitting such evidence to be given. After a doctrine has been thus settled by repeated adjudications, acquiesced in and relied on for nearly a century and a half, and sanctioned by legislative enactment, no court has the right to change it. Judges are not delegated to enact new laws, but to
But if the republication of the will should not be established to the satisfaction of the jury, it may be necessary to consider the other points of the cause. It seems that MattheAV and William Jack were originally the owners of the land in dispute, as tenants- in common, and that on the 27th October, 1837, they conveyed it to Andrew Stormont, who, on the 7th March, 1838, executed a mortgage to- them for the purchase-money. In October, 1843, Matthew Jack died, his will passing his interest in this debt to William Jack, if it could at tha-t time be regarded as personal estate. In I860-, after judgment on the mortgage, upon two- nihils- obtained, the premises were sold by the sheriff to William Jack,, and the deed has been regularly acknowledged. It is objected that this title is void, because the heirs of Matthew Jack were not served- with the scire facias upon the mortgage. But it has been repeatedly decided that the omission to serve the process upon them does not avoid the sale. The only effect of
But it is alleged that William Jack was a tenant in common with the other heirs of Matthew Jack, and had therefore no right to purchase the estate except for the common benefit. He was a joint owner with Matthew Jack of the mortgage debt, but the latter died in the exclusive occupancy of the land. When William entered, he claimed not as holding in common with the other heirs of Matthew Jack, but as claiming the, whole, under the republication of the will, by which the whole was devised to him. Whatever may be said about the legal rights of the other heirs to hold in common, it cannot be said with any propriety that they at any time actually did hold the land in common with William. The mortgage debt was personal estate, and upon the death of Matthew became vested exclusively in William. As it was contracted by Stormont, and not by Matthew Jack, the latter was not personally bound for it, and his executor (William Jack) was therefore under no obligation to apply the personal estate bequeathed to him in satisfaction of it, in order to relieve the land .from the charge for the benefit of the other heirs. There was, ■therefore, nothing in William’s relation to the other heirs which ¡precluded him from purchasing the property at the sheriff’s sale •upon his own mortgage. And as there was nothing in evidence which would have availed the plaintiff below, if offered on the trial of the scire facias on the mortgage, the court ought to have negatived their points and affirmed those of the defendant below. All the errors assigned have been maintained, and the judgment is to be reversed.
Judgment reversed, and venire facias de novo awarded.