author: Sharswood, J.

text:
    Hegarty’s Appeal.
    1. A testator devised to religious uses and died within a month of the date of his will. No caveat nor action was entered within five years after the probate of the will. Held, that the heirs at law were not concluded by sect. 7, of Act of April 22th 1856, from claiming the devised property.
    2. The will was not proved until more than a month after it date; this would not Vary the result as to devisees although the time of the death was to be established dehors the will and record.
    3. A provision in a will which is illegal and void will not prevent its probate.
    4. The adjudication of the register in the probate of a will on all matters within his jurisdiction is conclusive, if not appealed from within the time limited by law.
    5. The register’s jurisdiction in the probate of wills is confined to the questions whether the paper has been legally executed and is the will of the testator, leaving all other questions to subsequent decisions.
    6. Statutes of limitation affect the remedy not the title.
    7. The will gave the executor no power and imposed on him no duty as to the real estate. An Act of Assembly procured without the consent of the heirs authorized him to sell the real estate, and hold the proceeds in trust to pay expenses, debts, &c., and then to pay the balance to the parties entitled under direction of the Orphans’ Court. Held, that the act was unconstitutional.
    8. The legislature cannot against the consent of persons sui juris seised of a vested estate, authorize the sale of their real estate.

      March 25th 1874.
    Before A&new, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Clearfield county: In Equity: No. 136, to January Term 1873.
    The proceedings in this case were commenced by a bill filed May 31st 1870, by Henry Whiteside and Mary his wife in her right, James Hegarty, John M. Jordan, and Jane his wife in her right, and as assignee of George Hegarty, Henry Hegarty, Joseph Hegarty,'William Thomas and Isabella his wife, in her right, Mary Jane McCullough, Louis McCullough, Cortes Bell and Matilda his wife, in her right, and Agnes Bell, against Samuel Hegarty in his own right, and as executor, &c., of Samuel Hegarty, deceased, William Albert, George Albert, and Henry Albert, and the United Presbyterian Church of North America.
    The facts under which the controversy arose are as follows:—
    Samuel Hegarty, the decedent, on the 4th of March 1864 made his will, and died March 21st 1864, seised of a large quantity of real estate ; the will was proved April 6th 1864, and letters testamentary granted to Samuel Hegarty — a defendant — one of the executors named in it.
    By the will he gave to his "wife Lydia all his personal estate and “the proceeds or income of my farms during her life.” “ To the Presbyterian Church at the Cross-Roads as capital stock,” he gave one-fourth the timber on his land ; to the Old School Presbyterian Church one acre and a half of land for a site for a church and parsonage; and if a church should not be built, then for a parochial school. He gave to his adopted daughter Sarah Hegarty 100 acres of land. He gave further to the Old School Presbyterian Church three-fourths of the timber on his other lands, part for building a church or parochial school on the lot devised to the church, and the balance as capital stock to support the church or school.
    The will further provided :—
    “ Item 7. I will and bequeath to the Cross-Roads Church, after the death of my wife, one-fourth of all my lands, not already bequest, as an annuity.
    “ Item 8. I will and bequeath to the Old School Presbyterian Church the other three-fourths of all my lands, after the death of my wife, as an annuity for the support of a church or parochial school on the lot bequest to said church. * * *
    “Item 10. It is my will that the churches to which I have bequeathed my property shall use in worship Rouse’s version of David’s Psalms exclusively; otherwise I will it to the United Presbyterian Church, under the same restrictions ; their church to be established on the same site above described at the corner of the field; or if'the church or parochial school at this place do comply with my conditions in respect to the use of the Psalms and consequently using the site, and the church at the Cross-Roads do refuse to comply with the conditions of my will in respect to the use of the Psalms, then and in such case I revoke my will in this case of the Cross-Roads Church, and will all property left to said church to the United Presbyterian Church, to be used by them for the building and support of a church, &e.”
    There was no further residuary bequest.
    The testator left to survive him his widow, but no issue; he left two brothers, James and William Hegarty, and a sister, Mary, the wife of Henry Whiteside; also the children of three brothers and one sister who were dead; a number of these children were married women, and one of them was a minor who had a guardian, but was not one of the plaintiffs in this bill.
    On the 19th of February 1869 (Pamph. L. 144), an Act of Assembly was passed “ to expedite the settlement Of the estate of Samuel Hegarty, deceased, and authorize the sale of his real estate.” The act recited the seisin of the decedent, his death without issue, but leaving a wife, the devises to religious societies, &c. It further recited that the devises to the religious societies were believed to be void as failing to comply with the statutes in such case made, and most of the estate was unproductive and expensive; that there being questions as to the title, litigation might result and delay the settlement of the estate, “ and the widow and parties representing the same being desirous of changing the character of the property into personalty,” and “ under the peculiar circumstances the courts having no jurisdiction, and it being desired to leave the question of the rights to said property to be determined by the courts,” it was therefore enacted that the executor, &e., of the decedent be empowered to sell, at “ public or private sale, at his discretion, and for cash or upon time, all the real estate ” of the decedent, and convey to the purchasers, who “ shall hold the same * * * absolutely and free and discharged from any trust or condition under the will aforesaid, and for such estate as the said testator had therein, and free from any liability to see to the application of the purchase-money; and the said Samuel Hegarty, executor as aforesaid, when he shall have made sale of the said real estate, or any portion thereof, and shall have received the purchase-money and conveyed the premises so sold to the purchaser, shall make return of such sale to the Orphans’ Court, of Clearfield county, under oath, describing the property sold, the amount for which it hath been sold, the date of the conveyance, and the name of the purchaser or purchasers; and he shall hold the said purchase-money in trust to pay, first, the expenses of carrying out the provisions of this Act of Assembly ; secondly, to pay the debts of the testator, if any such there be; and, thirdly, to pay over the same to the parties legally entitled thereto under the will of the said Samuel Hegarty, deceased, under the order and decree of the Orphans’ Court of Clearfield county, and not otherwise;” the executor to give bond to be approved by a judge of the Orphans’ Court, &c., before making the sales he shall file in the office of the clerk of the Orphans’ Court of Clearfield county, a bond in ten thousand dollars, with at least two sureties, to be approved by one of the judges thereof, conditioned for the faithful performance of the trust hereby imposed.
    The bill set out as above stated, and averred that by the Act of April 26th 1855 (Pamph. L. 332, 2 Br. Purd. 1477, pi. 22), relating to bequests to religious and charitable uses, the devises to the churches were void and that the property devised descended to the heirs at law of the decedent; that the executor claiming to act under the authority of the Orphans’ Court had sold about 72 acres of the land of the decedent, being sufficient to pay all demands against the estate, including collateral inheritance tax, &c. They averred that the Act of 1869 was procured without the knowledge of the plaintiffs and against their will, “ is in violation of their rights of private property and is unconstitutional and void.” They further averred that the executor, under the authority of the Act of 1869, had sold about 300 acres of the decedent’s real estate to William Albert, George Albert and Henry Albert for about $8000, and that he was about to sell other real estate of the decedent.
    The prayers were:—
    1. That the executor be enjoined from selling and conveying any of the real estate of the decedent under the Act of 1869.
    2. That the Alberts be enjoined from paying over to the executor any money due on the sales to them till ordered by the court.
    3. For a decree that so much of the will of the decedent as gives property to the churches or schools having been made within a month of his death was contrary to the Act of April 26th 1855, and void.
    The answer of the executor admitted most of the material allegations of the bill. Further,
    The executor averred that several of the tracts of land of the decedent were subject to vexatious, annoying and protracted litigation, which if successful would absorb them; that therefore their actual value was indefinite, and “ the necessity for the early settlement of the estate by sale of the land without warranty, and the substitution of the proceeds therefor, was apparent in the opinion of counsel.” He submitted the question of the devises being void to the court, but averred, under advice and belief, that it would descend to the heirs at law under a cloud on the title by reason of the probate of the will; that the money arising from the sale of the 72 acres had been expended. He averred that the. Act of February 11th 1869 had been procured, with the consent and request of the widow, and under the advice of the counsel of the decedent, who had been such for twenty years, and knew all the difficulties of the titles, in good faith and for the best interests of the estate; the plaintiff did not oppose its passage, but acquiesced in it for a long time, and many of the heirs were content with the action of the legislature.
    He alleged, under information and belief, that the Act of 1869 was “ not unconstitutional and void, nor is it in the slightest degree violative of the rights of private property, because it does not in any manner attempt to deprive them of any vested right, but simply authorizes the sale of the realty and substitutes the money therefor with the rights of the plaintiffs to their part thereof, under the distributive power of the proper court fully preserved ; because it was the only mode 'by which the title to the said realty could be freed from the difficulties thrown around the title to the lands by the probate and the record of the will of the testator, under which record the legal title thereto had passed away, from the plaintiffs and vested dlsewhere, and they had acquiesced therein from the death of the testator until the filing of this bill, a period of more than six years; because it was for the best interest of the estate that the right and power to sell and dispose of these lands should vest in some one, and that they should at the very earliest moment practicable be disposed of in order to get rid of the complicated questions of location then and now existing, and in order to enable this court having jurisdiction of the subject-matter to distribute the moneys according to law, and to settle all questions of title thereto by the usual and proper proceeding; because it does not change the course of descent of any portion of the realty, or lessen or increase the share of any one of the parties plaintiffs ; because that under the peculiar circumstances surrounding the estate, the bequests and contingencies in the will of the testator, its probate and' record, the prolonged acquiescence therein, the silence of the plaintiffs, and of the religious societies, it became necessary for the executor, to proceed to close up the estate, and this Act of Assembly, as he is advised and believes, is the only mode in which under those circumstances a title to any of the realty could be passed free from taint or doubt; because that no power exists in the courts to substitute money for realty for the purpose of settling questions of distribution; because that upon application to the courts to sell for any purpose within their power, the price obtained would have been vastly less than under this mode of proceeding, for questions both of title and location would depreciate the property; because that under proceedings in partition among the heirs no satisfactory result could be attained by reason of the questions of location, and the uncertainty of title growing out of the same, and because that under all the facts and circumstances surrounding the case it was for the best interests of the estate, and there were no adverse interests to be considered and adjudicated, all of their rights being preserved for settlement before the proper judicial tribunal.”

      He admitted the sale of real estate to the Alberts for $8000, of which $1000 had been paid.
    The United Presbyterian Church averred that they were ready to comply with the conditions of the devises, and that, as they believed, the property devised was vested in them; they therefore claimed the property devised, and were allowed to become parties defendant to the bill.
    A replication was filed, and E. H. Murray, Esquire, appointed examiner and master; he made an elaborate and well-considered report. He found the facts substantially as contained in the bill and answer. He reported also that the devises to the churches were void under the Act of 1855; that the property devised descended to the decedent’s heirs at law, and that it was not such a title as could be affected by the probate of the will. He reported further that the plaintiffs were not within the 7th section of the Act of April 22d 1856 (Pamph. L. 533, 1 Br. Purd. 407, pi. 12, relating to'the conclusiveness of the probate of a will upon realty). The probate is conclusive only upon those who could contest that which is adjudicated by the probate, and that is the execution and not the contents of the will, as in a proceeding where the issue is devimvit vel non: Patterson v. Patterson, 6 S. k R. 55; Kenyon v. Stewart; 8 Wright 179; Warfield v. Fox, 3 P. F. Smith 385.
    After stating his conclusion that the executor’s appointment as such by the will gave him no control over the real estate after the devises fell, the master proceeded:—
    “ Was, then, the Act of February 11th 1869 constitutional? While the situation of this estate, at the time this act was passed, was in many respects similar to numerous other cases in which the legislature have interfered, and their action been sustained by the courts, yet it seems to have lacked some of the • essential requisites on which such decisions of approval have in each case been passed. The master, after careful review of the authorities cited by both of the solicitors, is unable to find any case where a private act authorizing sale by the executor of decedent — the heirs the absolute owners — their consent wanting — no provision in the act itself to obtain their consent prior to sale or delivery of deed — the relation of trustee not existing, and the claimants of full age at the time the act was passed — no provision in the act itself subjecting the whole proceeding of sale to the control and supervision of the Orphans’ Court — has been sanctioned by the Supreme Court, when the objection was raised by the heirs, they being absolute owners. On the other hand, some one or more of these conditions have several times been the cause of defeat of such Acts of Assembly.
    “ The Act of February 11th 1869 authorizing sale of the real estate of Samuel Hegarty, deceased, is such an act as the Supreme Court, guided by the principles laid down in Constitution of United States; Amendments, art. 5; Constitution of Pennsylvania, art. 9; Norris v. Olymer, 2 Barr 284; Brown v. Hummel, 6 Id. 86; Biddle v. Starr, 9 Id. 461; Ervine’s Appeal, 4 Harris 256; Ker v. Kitchen, 5 Id. 489; Kneass’s Appeal, 7 Casey 87; Menges v. Bentler, 9 Id. 495, and many other authorities, would declare unconstitutional and void. Therefore, the authority which it confers upon Samuel Hegarty, executor, to control and dispose of complainants’ interests in real estate of Samuel Hegarty, deceased, is invalid and illegal, and the complainants’, rights to the present control and disposition of their real estate is not affected by the said Act of Assembly.” * * *
    Exceptions filed to the report, were overruled by the court (Mayer, P. J.), and the following decree made:—
    “ That so much of the will of Samuel Hegarty, Sr., deceased, as bequeaths property, either real or personal, to the Presbyterian Church at Cross Hoads, the Old School Presbyterian Church, the United Presbyterian Church, and any other church or school in said will mentioned, having been made for religious or charitable uses, within less than one calendar month, to wit, seventeen days before the decease of said.testator, is contrary to the Act of Assembly of Pennsylvania, entitled ‘An act relating to corporations and to estates held for corporate, religious and charitable uses,’ approved April 26th, A. D. 1855, is hereby declared and adjudged to be unlawful and void.
    “ That the Act of the General Assembly of Pennsylvania, approved February 11th, A. D. 1869, entitled ‘ An act to expedite the settlement of the estate of Samuel Hegarty, &c.,’ * * * having been passed without proper consent or authority from many of the heirs or persons interested in the estate of said Samuel Hegarty, deceased, being persons over twenty-one years of age and owners in their own right of their respective interests in said estate, especially Mary Whiteside, James Hegarty, Jane Jordan, John M. Jordan (assignee of George Hegarty), Henry Hegarty, Joseph Hegarty, Mary Jane McCullough, Louis McCullough, Matilda Bell and Agnes Bell, the said Act of February 11th 1869, so far as respects the interests of said persons and of all others in like situation, in said estate, is hereby declared and adjudged to be unlawful and void.”
    The decree also enjoined the executor from selling and conveying any of the decedent’s lands and from completing any sales theretofore made.
    Samuel Hegarty appealed to the Supreme Court, and assigned the decree for error.

      W. A. Wallace, for appellant.
    The record would have shown that the will was duly proved after five years, the probate was conclusive, and it could not then be set aside by parol proof of the date of the death of the testator. The probate of the will is a judicial act and it cannot be inquired into collaterally or impeached by parol testimony: Carpenter v. Cameron, 7 Watts 51; Holliday v. Ward, 7 Harris 485; Barker v. McFerran, 2 Casey 211; Kenyon v. Stewart, 8 Wright 179; Folmar’s Appeal, 18 P. F. Smith 482; Wallize v. Wallize, 5 Id. 242.
    After five years without caveat or action at law duly pursued, the probate of the will is conclusive that the title to the realty named therein has passed to those to whom it is thereby given and away from all persons claiming under the testator: Act of April 22d 1856, sect. 7; Warfield v. Fox, 3 P. F. Smith 382. There is no reason why the statute should bar the contest where fraud and undue influence are alleged, and not bar it where the “ will as to the realty ” is alleged to be invalid by reason of a statute: Redfield on Wills 519; Kenyon v. Stewart, 8 Wright 191; Gaines v. N. Orleans, 6 Wallace 642; Bailey v. Bailey, 8 Ohio 246; Crippen v. Dexter, 13 Gray 330 ; Allison v. Smith, 16 Michigan 405.
    In the propounding a will for probate, the rights of all concerned or interested are involved. It is not a proceeding of party against party, but one intended to pass upon the testamentary qualities of the papers exhibited for probate, and to ascertain and adjudge the status of the estate. Being substantially one in rem, it would be conclusive against all the world while unrevoked. The rule which declares that a transaction between two contending parties ought not to bind the interests of a third, has no application to those cases where the object of the litigation is to ascertain and settle the state or condition of the subject-matter: Allen v. Dunday, 3 T. R. 125; Bernardi v. Motteux, Doug. 554; Tompkins v. Tompkins, 1 Story R. 547 ; Ennis v. Smith, 14 Howard 400; Stebbins v. Lathro, 4 Perk. 33 ; Canaan v. Greenwood, 1 Conn. 7; Pritchard v. Hicks, 1 Paige 270; Muir v. Trustees, 3 Barb. Ch. R. 477 ; McPherson v. Cunliff, 11 S. & R. 433; President v. Groff, 14 Id. 181; Bogardus v. Clarke, 4 Paige 623.
    The complainants were those interested to controvert this will, and having failed to do so for five years, they are barred and concluded; they are out of possession. If they had possession of the land they might with more force argue that they were already in the enjoyment of all they claim and were not bound to regard the limitation.placed upon them by the Act of 1856. They are outside of the class of cases which establish the position that one who is already in the complete enjoyment of all he claims cannot by a limitation law be compelled to resort to legal proceedings, for every one of those cases is predicated of actual possession by the party to be affected: Clark v. Trindle, 2 P. F. Smith 462; Williard v. Williard, 5 Id. 126; Leffingwell v. Warren, 2 Black. 599; Stewart v. Trevor, 8 Wright 374; De Moss v. Newton, 31 Indiana 217.
    The Act of Assembly in this case was to unfetter the realty of conflicting titles and contingent interests and to convert realty into personalty, giving to the purchasers clear titles and the parties the full value of their interests. This is what is provided for by the Price Act of 1853, and is valid: Greenawalt’s Appeal, 1 Wright 95; Burton’s Appeal, 7 P. F. Smith 219 ; Ker v. Kitchen, 5 Harris 439; Norris v. Clymer, 2 Barr 277; Biddle v. Starr, 9 Id. 277 ; Martin’s Appeal, 11 Harris 433 ; Fullerton v. McArthur, 1 Grant 232; Carter v. Commonwealth, 1 Id. 216; Stanley v. Colt, 5 Wallace 119.

      J. B. MeEnally, for appellee.
    The devise was void under the Act of April 26th 1855 : Price v. Maxwell, 4 Casey 23; McLean v. Wade, 5 Wright 266; Miller v. Porter, 3 P. F. Smith 292. The probate involves the validity of the execution: Patterson v. Patterson, 6 S. & R. 55. The real estate as to which the probate is conclusive under the Act of 1855 is such only as the testator has the power to devise to the person named in the will: Kenyon v. Stewart, 8 Wright 188; Warfield v. Fox, 3 P. F. Smith 385.
    The legislature has no power, by a special act, intended for a particular case, to authorize one person to take, manage and sell the property of another without his consent, where that other person is owner in his own right, of full age, and capable in law of acting for himslef: Amendments to Constitution of U. S. art. V.; Constitution of Penn’a, art. IX., sects. 1, 9, 11; Brown v. Hummel, 6 Barr 86; Ervine’s Appeal, 4 Harris 256; Kneass’s Appeal, 7 Casey 87.
   The opinion of the court was delivered, July 2d 1874, by

Sharswood, J.

The first question which requires our consideration in this cause is whether the complainants in the bill filed below had any standing in court. They claimed as the heirs at law and next of kin of Samuel Hegarty, deceased, and as such entitled to a reversionary interest in the property in question. Their title depends upon whether they are or are not concluded by the probate of his will, and the lapse of five years without caveat and action at law under the Act of April 22d 1856, sect. 7 (Pamph. L. 533), from setting up the invalidity of the devises and bequests therein made to the United Presbyterian Church of North America.

By the eleventh section of the Act of April 26th 1855 (Pamph. L. 332), it is enacted “that no estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will attested by two credible and at the time disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin or heirs, according to law.” It is an undisputed fact that Samuel Hegarty, the testator, did die within one calendar month after the execution of his will. It was not indeed presented for probate until after a month from its date had expired, so that upon the face of the proceedings in the register’s office, there was nothing to give notice to purchasers of the invalidity of the disposition to religious uses made in the will, which depends, therefore, entirely upon a fact dehors the will and the record of the probate. No purchaser has intervened, however, and no question can arise as to the consequence of this state of facts, if there had.

The words of the eighth section of the Act of 1856 are “ that the probate of the register of the proper county of any will devising real estate, shall be conclusive as to such realty, unless within five years from the date of such probate, those interested to controvert it, shall by caveat and action at law, duly pursued, contest the validity of such will as to such realty.” This language is certainly very broad and comprehensive, and if construed literally would include a devise of realty invalid for any cause whatever, though appearing upon the face of the will itself, for example, a bequest or devise for an immoral or unlawful purpose, or where there is a limitation to take effect beyond the period prescribed for prevention of perpetuities — or a clause restraining alienation by a devisee in fee, and many other similar cases which might be enumerated. In all such cases the devise or provision is pronounced to be illegal and void, and has never been supposed to prevent probate of the whole will. In the language of the English decisions, such questions are referred by the courts of probate to the courts of construction. It has not been and cannot be contended that the legislature designed to reach and conclude such questions. Looking at the old law and the mischief, we think it clear, that the remedial operation of the act should be confined to that mischief. The law undoubtedly was, that while the decree of a register or a register’s court unappealed from admitting a paper writing to probate, conclusively established it as the will of the testator, not to be ever after drawn in question in any other court or proceeding as to the personal estate bequeathed or disposed of therein, it was only primá facie evidence as to realty. At any period, then, apart from the bar produced by adverse possession for twenty-one years, by the Statute of Limitations, it was competent for any party in an action of ejectment or other proceeding to contest, not merely the factum of the will — its due and legal execution, but every other question which might be raised before the register, such,as mental incapacity, fraud, duress or undue influence, and this, at a time when from the death of witnesses, those interested to support the will might labor under very great disadvantages. Purchasers from devisees or from executors under a power of sale could never be entirely secure until the Statute of Limitations had barred all opposing interests, or two verdicts and judgments in ejectment had come to their relief.

This was considered and must be admitted to have been a serious mischief. The' main purpose of this section,” said Mr. Justice Woodward in Kenyon v. Stewart, 8 Wright 189, speaking of the Act of 1856, “ was to give to the probate of wills, after five years, the same conclusive effect as to real estate, which it has always possessed in England and here, in respect to personal goods. Though held to be primfi facie evidence of title, the probate with us has been open to contest indefinitely, or at least for any time short of the period at which the common law would set up a conclusive presumption in its favor. This was the mischief the statute meant to remedy. Innumerable titles throughout the Commonwealth depended, and always will depend, on the probate of wills. That probate, the foundation of so many titles, we treat as a judicial decree, and the legislature thought there ought to be a. time when it should be no longer questionable. The act of which this section is a part was planned to assure the people of greater certainty of title, and to make them more secure in the enjoyment of real estate. It is founded on highest considerations of public policy. It is a statute of peace, security and repose. It is entitled, therefore, to a liberal construction from the courts.”

If, then, the intention of the act was simply to put probates of wills as to realty after five years upon the same footing as probates of wills of personalty, let us consider the effect of such a probate upon the question of- such an objection to validity as is here set up. If the probate as to a bequest of personalty to religious and charitable uses made less than a calendar month before the death of the testator, will not prevent the next of kin or residuary legatees from raising this contention, neither ought it to have that effect as to realty after the lapse of five years, without caveat and action at law. What is the jurisdiction of the register ? It may be conceded that his adjudication as to all matters within his jurisdiction is conclusive, if unappealed from within the time allowed bylaw. By the Act of March 15th 1832, sect. 5 (Pamph. L. 135), he has jurisdiction of the probate of wills and testaments. By the thirteenth section of the same act, “ it is provided that whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof, any matter of fact touching the validity of such, writing, it shall be lawful for the register, at the request of any person interested, to issue a precept to the Court of Common Pleas of the respective county, directing an issue to be formed upon the said fact or facts, and also upon such others as may be lawfully objected to the said writing.” The language of this section would seem at first blush to include the case of any invalidity rising from a matter of fact, yet the form of the precept which follows shows evidently that the legislature had in view only such matters of fact as enter into the question, whether the alleged testamentary writing was in truth, the will, the expression of the mind of the testator, not-whether its provisions were lawful or unlawful. The form of the precept prescribed, recites that E. D. hath objected before our said register, that the said writing was procured by duress and constraint, stating the matters of fact objected,” and directing that “ an issue therein may be formed upon the merits of the controversy.” Taking the whole of these provisions, it might very naturally be inferred that it was thought that every controversy of this character must relate to the whole of the testamentary writing propounded as a will. Yet in the reason of the thing, duress and fraud may relate only to a single clause, and even incapacity arising from monomania, may infect only part of the disposition, and there would be no ground of policy or principle of law which ought to strike down the whole instrument on that account. Accordingly, nothing is better settled in England than that the ordinary or ecclesiastical court has exclusive jurisdiction of the question, whether any particular clause is really a part of the will of the testator. This was solemnly determined by the House of Lords, the court of the last resort, in Allen v. McPherson, 1 H. of L. 191. That was an appeal from the decree of the Lord Chancellor, dismissing a bill for want of jurisdiction, which set up that a particular clause in the will had been inserted through a fraud practised upon the testator. It was held that it was exclusively within the province of the ecclesiastical court to determine what was the will of the testator, and whether the clause in question formed a part of it, and their determination of that question by the admission of the paper to probate, with or without that clause, was not open t'o be re-examined in any other court or proceeding. Other cases to the same effect are cited in 1 Williams on Ex. 330, and Mr. Redfield is of opinion that the English rule is applicable in this country: 2 Redfield on Wills 48. There is a dictum in Rudy v. Ulrich, 19 P. F. Smith 183, that “ a will propounded for probate may he contested in whole or in part.” That, however, is a mere dictum, grounded on the English cases, and expressing merely the opinion of the judge delivering.the judgment, and not the ratio decidendi of the cause. Nor is it necessary absolutely to decide the question here. We may assume that where the contest is, whether a particular clause really forms a part of the will of the testator, as in the case of a fraudulent insertion or introduction, a legacy procured by. duress or undue influence, which are instances falling strictly within the issue devisavit vel non, it is in the power of the register to grant probate of the rest of the paper without such clause as forming in truth no part of the will. But it certainly does not follow from this that his jurisdiction extends to deciding upon the validity of any disposition upon any other ground, than that it is not in truth the voluntary act of the testator, even though such validity may depend upon some extraneous matter of fact. In Baxter’s Appeal, 1 Brewster 460, it was said, in the opinion of this court, that “ though a writing propounded as a will may contain one or more dispositions of property unlawful or void-for any reason, it by no means follows that it is not to be admitted to probate. It may contain other useful provisions not at all affected by the cause of the alleged invalidity.” Coates v. Hughes, 3 Binney 498, is there cited. That was the case of an afterborn daughter, in fact, the testator’s only child, which it was contended operated under the Act of April 19th 1794, § 23, 3 Smith 152, as a total revocation of the will. The court decided that such birth of a child was a revocation pro tanto only, leaving the provisions of the will unaffected as to the appointment of executors, and a power to sell for the payment of debts. It is worthy of remark that the distinguished counsel for the defendant (Messrs. Sergeant & Rawle), who argued for the will, raised the very point which we are now considering, that the probate was conclusive ; which was disposed of by the court during the argument, by declaring that, as it was an ejectment for real estate, it had been settled in Vangorden u. Vangorden, a manuscript case found among the notes of Judge Smith, that the probate as to the real estate was only primá facie. There is some, although not a perfect analogy between the ease of a will revoked in part by the subsequent birth of issue, and the case in hand. Indeed, in such a case as Coates v. Hughes, that of an only child and no widow, all the dispositions of the will are superseded, except those modal only; the child sweeps the entire estate. There the analogy is perfect, a fact dehors the will made by statute a ground of invalidity. In other cases it would be difficult to grant probate where the dispositions of the will were good as to some of the children, without passing upon the whole will. It could not be done by striking out certain parts. For this reason, McKnight v. Read, 1 Whart. 213 ; Young’s Appeal, 3 Wright 115; and Edwards’s Appeal, 11 Id. 144, cases of after-born issue, and relating in part or in whole to personal property, -where no point as to the conclusiveness of the probate was made, have no bearing on the question.

But in Price v. Maxwell, 4 Casey 23, which- arose under this very Act of 1855, in a will both of realty and personalty, it was not suggested that the probate was conclusive as to the personalty, but the devises and bequests to a charity were both pronounced invalid upon a bill in equity in this court. Such was the fact also in McLean v. Wade, 5 Wright 266, an action of debt brought to recover a legacy which was decided to be void, the testator having died within a calendar month after the execution of the will.

In England there are many cases of wills of personal estate, admitted to probate in the Ecclesiastical Court, in which particular dispositions have been subsequently adjudged to be invalid on other grounds than that they did not truly express the will of the decedent.. Thus in Shanley v. Baker, 4 Ves., Jr. 752, which was a bequest of a leasehold estate to a charity, it was held to fall under the statute upon that subject in England, 9 Geo. II., c. 86, and to pass under a general disposition of the residue. To the same effect is Page v. Leapingwell, 18 Ves. 463. These eases are not strictly analogous, because all gifts to charities by 9 Geo. II. had to be by deed executed twelve calendar months before the death of the testator, and without power of revocation. We are without any direct decision, as far as I can ascertain, but these cases all seem strongly to show that professional opinion sustains the view that the jurisdiction of the register in the probate of wills is confined to the question, whether the paper has been properly executed according to law, and is in point of fact the will of the alleged testator, leaving all other questions to subsequent decision if they should afterwards arise. We consider this doctrine as most in accordance with general principles, as well as the provisions of our statutory system.

A suggestion has been made to me by an eminent member of the Philadelphia Bar, with whom I conversed upon this point, and which, as it may occur to other minds, I deem it proper to notice. It is, that the statute raises a presumption juris et de juref of either-the mental incapacity of the testator, or of undue influence over him exercised by ministers of religion or others to produce the feeling that he might propitiate the Divine Being by appropriating his property to charitable or religious uses, and this often with great injustice to his family. In this view it might be held strictly to fall within the jurisdiction of the register. No doubt the legislature may have been influenced by such considerations in passing the act, which is -not founded upon a general policy of striking down all gifts to such uses, but only such as may be made within a calendar month of death, most generally, therefore, in the last sickness, a period of mental weakness produced by bodily weakness, and when the mind, -through the fear of death and the unknown hereafter, is more than ordinarily susceptible to such influences. There are arguments also drawn from the expediency of having all such questions speedily settled, and not postponed to a remote period, which strongly plead in favor of any view which would give this construction to the statute. Yet it seems to us too subtle a refinement to suppose that the legislature meant to create such a presumption. The act establishes an unbending rule, fixes an arbitrary period, and enacts that such dispositions of property, whether by deed or will, shall be absolutely void. It could not have escaped their attention that while a will is of necessity revocable, a deed is irrevocable unless it contains a power. By the Statute of Geo. II., no disposition by will is good, and all dispositions by deed must be within twelve calendar months of the death of the testator, and contain no power of revocation. The same theory as that here suggested might have been applied in the construction of the English statute, but as we have seen, it has not. The probate has not been held conclusive as to personalty.

It has been contended also, that the Act of 1856 is to be regarded as a statute of limitation, applicable to all real estate devised by will. But statutes of limitation affect the remedy, not the title. This statute lays down a rule of evidence, making a judicial decree which was before primá facie evidence only, after the lapse of five years without caveat or action at law duly pursued, conclusive. There are many other difficulties which stand in the way of regarding it as a statute of limitation. No reference to entry is made, and those interested to contest the disposition may have no right of entry during the five years by reason of a valid life or other less estate interposed. They may be in possession themselves. It has been held by this court that there are no exceptions to be implied to save the rights of persons laboring under disabilities: Warfield v. Fox, 3 P. F. Smith 382. There-are undoubtedly practical difficulties in the construction of the words “ caveat and action at law duly pursued,” but either the exceptions must be implied to save the rights of those in possession, or whose right of entry has not accrued within the five years, or perhaps a form of action under the statute might be supported to decide the right. These difficulties must be left to be disposed of when they are presented.

It results, if this course of reasoning be sound, that the dispositions of the will of Samuel Hegarty, deceased, in favor of religious and charitable uses are void;.that as to the property so disposed of he died intestate, and upon the death of his widow, it will pass to the plaintiffs below. They have a valid legal title to the reversion. As to them the executor of the will is an entire, stranger. Can the legislature, then, without my consent, confer upon such an entire stranger to me a power to sell my property and to hold the proceeds as a trustee for me ? Ervine’s Appeal, 4 Harris 256, and Kneass’s Appeal, 7 Casey 87, answer this question unequivocally in the negative. They certainly settle that the legislature had" no power to authorize the sale of the property of parties sui juris and seised of a vested estate in the premises against their consent. It is true that several of the plaintiffs below were married women, but they were not minors, and with the consent of their husbands in the mode provided by law had full capacity to dispose of their property. The case, then, is entirely distinguishable from Norris v. Clymer, 2 Barr 277; Sergeant v. Kuhn, Id. 393; Ker v. Kitchen, 5 Harris 433, and all that class of cases, where the trustees of the legal estate have been authorized to convert realty into personalty. Biddle v. Starr, 9 Barr 452, was where there was a clear right to a partition between tenants in common, yet because of the pendency of a contest in regard to the last will of one of them, the partition might have been hung up for an unreasonable time, had not the legislature interposed and provided a remedy. We hold, then, that the Act of February 11th 1869 (Pamph. L. 144), entitled “ An act to expedite the settlement of the estate of Samuel Hegarty, of Clearfield county, deceased, and to authorize sale of his real estate,” was unconstitutional, and that the court below was right in enjoining the executor from proceeding to make sale under it.

Decree affirmed, and appeal dismissed at the costs of the appellant, to be paid out of the estate in his hands.


source: Caselaw Access Project

author: The Chief Justice (Read)

license: Public Domain

text:
    Hawkins versus The Commonwealth ex rel. &c.
    1. An Act of Assembly enacted that no one should be eligible to the councils of Philadelphia who at the time of his election held “ office or employment” under the state. A notary public was elected to the councils. A quo warranto to oust him was issued on the suggestion of private relators ; pending which an act was passed declaring that the meaning of the first act was not to prevent a member of councils from holding the office of notary public at the same time and that no member of the present councils should be disqualified on account of being a notary public nor should he be removed from the councils for such disqualification. Held, That the latter act was constitutional.
    2. The act simply modified the charter of a municipal corporation over which the legislature has control and did riot interfere with any vested right.
    3. The act concerned the public and did not interfere with the proper functions of the court nor override the judiciary.
    May 15th 1873.
    At Harrisburg. Before Read, C. J., Asnew, Shakswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Philadelphia: No. 17, to July Term 1873.
    This was a proceeding of quo warranto by the Commonwealth at the relation of William S. Robinson and Thomas A. Mecauly against Henry C. Hawkins.
    The information was filed December 5th 1872. It suggested that the defendant unlawfully exercised the office, &c., of a member of the Common Council of Philadelphia, to which he had been elected in October 1871, he being at that time a notary public under a commission from the Governor of the Commonwealth, issued December 10th 1870.
    By the Act of February 2d 1854 (Consolidation Act), § 4, Pamph. L. 24, providing for the election of members, it is also provided that no “ one holding office or employment from or under the state at the time of said election, shall be eligible as a member of said councils.”
    On the 18th of February 1873, the defendant pleaded an Act of Assembly passed January 29th 1873 (Pamph. L. 103), which enacted:
    “ Sect. 1. The true intent and meaning of the Act of Assembly, entitled An Act to incorporate the city of Philadelphia, approved the 2d day of February, A. D. 1854, is not to prevent any member of the Select and Common Councils of the city of Philadelphia, from holding at the same time the office of notary public.
    “ Sect. 2. The holding of the office of notary public shall not be incompatible with holding at the same time, the office of member of either branch of the councils of the city of Philadelphia; and no member of the present councils of the city of Philadelphia shall be held to be disqualified, on account of the holding of the office of notary public-; nor shall he be removed from the office of member of councils, by reason of any such disqualification.”
    To this plea the Commonwealth demurred—
    “ First. That the alleged Act of the General Assembly of this Commonwealth, set forth in said plea, cannot remove the disqualification of the defendant.
    “ Second. That the said alleged act of the legislature is unconstitutional, and therefore void, because it is an assumption of the judicial power of the Commonwealth.”
    Finletter, J., in delivering the opinion of the Court of Common Pleas, said : * * *
    “ The Supreme Court has settled decisively all the questions which can arise in this inquiry, in 2 W. & S. 271; 4 Id. 227 ; 1 Jones 494; 3 Harris 18; 4 Id. 256; and 7 Wright 515. It speaks in no doubtful language and gives no uncertain sound. It will be seen therein how steadily and firmly every encroachment upon the judiciary has been resisted.
    “ From these cases it is clear that the legislature has no authority to pass retroactive expository acts. Nor can it command the decision of a court in a particular way, or forbid the legitimate consequences of a judgment.
    “ The Act of 1873 strides far beyond all others of like character. It not only interprets the Act of 1854, and commands us to decide a particular case in a particular manner, but it also forbids the operation of our decree in a particular cause.
    “ Without doubt, we desire to treat with great respect the action of the legislature. We may not question that within its proper province it is omnipotent. We can, however, only see in the act under consideration, a needless assumption of authority. In order that a particular individual may exercise the offices of notary public and member of councils at the same time, the legislature has undertaken to say that the Act of 1854 did not mean what, in express and fitting language, was declared to be its intent and meaning, and what has been acquiesced in by every one for nineteen years. It has also said that the judgment of the court in a matter within its jurisdiction, shall not be enforced. In other words, it has usurped the prerogatives of a preceding legislature, and the functions of this court. It may be possible that the object to be attained might extenuate the inconsiderate exercise o.f such power. It cannot justify it.
    “ Apparently the Act of 1873 has no other purpose than to anticipate and annul the decision of the court in a case pending. When such legislation exists without necessity or excuse, the' legislature not only overrides the judiciary, but becomes a terror and a dread to the whole community.”
    The court decreed that the defendant be ousted from the office of councilman for the city of, Philadelphia.
    The defendant removed the record to the Supreme Court by writ of error, and assigned the decree of the Court of Common Pleas for error.

      W. 3. Buddiman, 0. 3. T. Qollis and W. B. Mann, for plaintiff in error.
    Retrospective laws to modify an existing remedy or remove an impediment, are not unconstitutional: Hepburn v. Curtis, 7 Watts 300; Kenyon v. Stewart, 8 Wright 179. Although judicial proceedings have been commenced: Lightner v. Commonwealth, 7 Casey 341; Underwood v. Lilly, 10 S. & R. 97; Barnet v. Barnet, 15 Id. 72; Bleakney v. The Bank, 17 Id. 64; The Turnpike Co. v. The Commonwealth, 2 Watts 433; Evans v. Montgomery, 4 W. & S. 218; Cavernow v. Mutual Life Ins. Co., 2 P. F. Smith 287; Tate v. Stooltzfoos, 16 S. & R. 35; Mercer v. Watson, 1 Watts 356.

      J. J. Bidgway, Jr., and W. 3. Bawle, for Commonwealth.—
    When the law declares that-certain disqualifications render a person ineligible to office, they must be removed before he can be elected: Commonwealth v. Pyle, 6 Harris 519. The legislature cannot change the settled interpretation of a statute, or direct the performance of a judicial function in a particular way: O’Connor v. Warner, 4 W. & S. 227; Greenough v. Greenough, 1 Jones 489; Reesor v. William Tell Association, 3 Wright 137; Cooley on Constitutional Limitation 94.
   The Chief Justice (Read)

delivered the opinion of the court, May 17th 1873

To the suggestion filed by the two private relators, that the defendant being a notary public, holding office under the state, was not eligible to the Common Council, the defendant, on the 18th of February 1873, pleaded an Act of Assembly of the 29th of January 1873, entitled “An Act relating to the office of notary public in the city of Philadelphia,” in which it was declared, that the true intent and meaning of the Act of Assembly, entitled “ An Act to incorporate the city of Philadelphia,” approved the 2d day of February 1854, is not to prevent any member of the Select and Common Councils of the city of Philadelphia from holding at the same time the office of notary public, and which further enacts, that the holding of the office of notai’y public shall not be incompatible with holding at the same time the office of member of either branch of the councils of the city of Philadelphia; and no member of the present councils of said city shall be held to be disqualified on account of the holding or having held at the same time the office of notary public, nor shall he be removed from the office of member of councils by reason of any such disqualification.

To this plea the relators demurred, assigning among other causes of demurrer, that the said act was unconstitutional, and on the 5th of April 1873, the court sustained the demurrer and entered judgment of ouster against the defendant.

In this, we think the learned judge was clearly in error, for the Act of 29th January 1873 was a perfectly constitutional law, and if the attorney-general had been the relator, he would have discontinued the suit as soon as the act was brought to his notice, as would have been his duty.

This act deals simply with a part of the charter of a municipal corporation, over which the legislature had entire control, and did not interfere with any vested right of any individual, and certainly not of the two relators. It was a matter concerning the public, and was strictly within the province of the legislature, and was not an interference with the proper functions of the court, and did not “override the judiciary.”

Judgment of ouster reversed, and judgment for the defendant.


author: Per Curiam.

text:
    Cressons’ Appeal.
    A testator gave to his wife in fee a house and lot, “ being the value of what I have received of her property,” also a house, &c., for life, “ with the furniture, horses, carriages, plate, &e.” Also an annuity of §4500 for the “ support of herself and the board of our children during their minority.” The residue “ of my estate I give, devise and bequeath to all my children, who shall then be living, to hold to them, their heirs and assigns, equally to be divided among them, share and share alike, as tenants in common, and not as joint tenants, for ever.” He appointed his wife guardian of the persons and a friend guardian of the estate of his children. Held, upon the whole will, that “ then” in the residuary clause referred to the death of the testator, and that children of his children who died in the life o'f the widow, took what would havp been their parents’ share of the residue.
    January 6th 1874.
    Before Agnew, C. J., Merger and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia, to January Term 1872, No. 158. In the estate of Caleb Cresson, deceased.
    Caleb Cresson died in 1821, leaving to survive him a widow, Sarah Emlen Cresson, and six children, viz.: Caleb Cresson, Jr., Mary Emlen Cresson (afterwards Smith), Emlen Cresson, William P. Cresson, Charles 0. Cresson and Annabella C. Cresson (after-wards Wistar).
    He left a will dated August 2d 1815, and a codicil dated June 24th 1818; they are as follows:—
    “ Imprimis. I direct all my just debts to be fully paid and satisfied.
    “ 2d Item. All that messuage and lot of ground situate on the south side of Chestnut street, between Second and Third streets, from Delaware, now in the tenure of Thomas Greaves, with the appertenances, I give and devise unto my beloved wife, Sarah Emlen Cresson, to hold to her, her heirs and assigns, for ever, subject to the mortgage and ground-rent, as I now hold, it, this being about the amount or value of what I have received of her property.
    “ 3d Item. All that messuage and lot of ground situate on Arch street, between Seventh and Eighth streets, from Delaware, in which we now dwell, with the stable and appertenances, I give and devise to my beloved wife, the said Sarah Emlen Cresson, for and during all the term of her natural life, together with the furniture, utensils, horses, carriages, plate, &c., &c., as they now are and remain, and I direct that no inventory be taken thereof.
    “4th Item. I give and bequeath to my dear wife, the said Sarah Emlen Cresson, one annuity or sum of four thousand five hundred dollars per annum, to be paid quarterly, out of my estate, during all the tei’m of her natural life, for the comfortable support of herself and the board of our children during their minority.
    “ 5th Item. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever, I give, devise and bequeath to all my children who shall then be living, to them,' their heirs and assigns, equally to be divided among them, share and share alike, as tenants in common, and not as joint tenants, for ever.
    “ 6th Item. I nominate and appoint my beloved wife guardian of the persons, and my friend, John Cooke, guardian of the estate of my children.

      “ 7th Item. I nominate and appoint my dear wife the said Sarah Emlen Cresson, executrix, and my friend, the said John Cooke, executor of this my will, hereby revoking all wills by me heretofore made, and declare this to be my last will and testament, in my own handwriting. In witness * * *
    “ Having had some doubts as to the construction that may be placed on the devises and bequests to my dear wife, Sarah Emlen Cresson, in the foregoing will, I have thought it best to add as a codicil thereto, that what is thereby given to her, is in lieu and bar of dower, or any other interest in my estate, hereby confirming my said will in other respects.”
    John Cooke having died, the widow became the sole executrix of the will.
    The residue of his personal estate amounted to $400,000. Two of his children died in the lifetime of the widow, to wit: Caleb Cresson, Jr., leaving one child, Sarah Emlen Cresson; and Annabella C. Wistar, leaving four children, Dillwyn Wistar, C. Cresson Wistar, Emma Wistar, and Bartholomew Wistar. The widow of the testator died March 28th 1870. Most of the estate of the testator had been divided amongst the children by an amicable arrangement whilst all were living.
    After the widow’s death, her executors settled her account as executrix of her husband. This account was referred to William H. Ruddiman, Esq.,*as auditor, for adjustment,. &c., and to report a distribution of the balance. He reported that the balance for distribution, after deducting costs and expenses of audit, was $28,710.42.
    After an elaborate discussion of many authorities, and application of their principles to the will, he concluded:—
    * * * “ Following the line of reasoning into which he has thus been necessarily conducted, the auditor is of the. opinion, that by the words 11 all my children who then shall be living,’ the testator had reference only to his children who should be living at the death of his widow, and not to the issue of any deceased children ; that ‘ all my children who shall then be living,’ cannot be made to describe all his children who should be living at the time of his own death; that the estate in remainder did not vest at that period, but upon the happening of that event upon which it was contingent as to the parties who were to take; and that therefore, the children of Caleb Cresson, Jr., and Annabella C. Wistar, cannot claim any share as belonging to their deceased parents; their said parents not being in the class described as residuary legatees of the testator. The claim made by them is accordingly disallowed.
    “ The auditor therefore finds in favor of the children of the testator, who were living at the period of the death of their mother, to wit: Mary Emlen Smith, Emlen Cresson, William P. Cresson and Charles C. Cresson; and reports distribution among them in equal proportions, of the balance in the hands of the accountant.”
    The children of Caleb Cresson, Jr., and Annabella C. Wistar, filed exceptions to the report.
    After hearing the exceptions, the Orphans’ Court (Peirce, J.) delivered the following opinion :—
    * * * “ The question which arises under this will is to what period of time do the words in the residuary clause devising and bequeathing the remainder of his estate to all his children ‘ who shall then be living ’ refer ? There are three periods of time mentioned or referred to in the will to which they may be applicable, viz.:—
    “ 1. The death of the testator.
    “ 2. The termination of the minority of the children.
    “ 3. The death of the widow.
    “ The auditor has found that the words refer to the last of these events, the death of the widow.
    “ In reading the will it will be perceived that none of these periods are referred to in express terms, but are only inferable from the use of other terms expressed in the will. Thus the words, ‘ I give, devise and bequeath ’ imply the death of the testator before the devise or bequest can take effect. . And the words, ‘ for and during all her natural life,’ imply a termination of that life. And the words, £ during their minority,’ imply a termination of the minority.
    “The word ‘then’ is-an adverb of time and usually relates to some antecedent period or event. Thus A. devises to B., and on the death of B. then to C. The word then in that case clearly refers to the death of B. Sometimes it indicates an order or succession of events. Thus a testator bequeaths to his son a sum of ten thousand dollars, and proceeds by will to say: ‘ Then I give and bequeath a like sum of ten thousand dollars to my daughter.’ The word then in that case indicates an order of giving.
    “ It* is one rule of the interpretation of language that the relative word refers to its nearest or immediately preceding antecedent; this rulé of course has its qualifications, as where the relative word and the nearest antecedent are so manifestly incongruous that they cannot relate to one another.
    “ To apply this rule to the residuary devise in this will, it will be perceived that the nearest antecedent to which the word then can refer is the devising words, ‘ I give, devise and bequeath,’ which are immediately followed by the words, ‘to all my children who shall then be living.’ When living ? If there are no other words to control the intention clearly, then the will and devise are to take effect as a testamentary disposition, to wit, at the death of the testator.
    “But supposing these words do not relate to the death of the testator, the next preceding period of time referred to is the minority of the children. Do the words ‘who shall then he living ’ relate to this period or the termination of it ? The testator had made provision in part at least for his children during their minority, by directing that the annuity of $4500 to his wife, should be for the support of herself and the board of the children during their minority. Were the children at the termination of their minority to he cut off from all support until the death of their mother ? It will be observed that no provision was made for the clothing or education of the children during their minority by the bequest of the annuity to his wife. It was limited to the support of herself and the hoard of the children during their minority. It will be remembered also that two of these children were daughters, and little capable, probably, of providing a maintenance for themselves. Would it then in view of these facts be a safe construction of this devise to say that the testator intended that his children should have no clothing or education during their minority, and that they should not come into possession of the very large residuary estate which he left them until after the death of their mother, and only then contingent on their surviving her ? If he meant this, he is supposed to have foreseen the possibility of his wife surviving him nearly half a century; during which time his children would he wholly unprovided for, except for their hoard during their minority. To give this construction to the will, the words of it should he so direct and decisive, or so clearly referable to no other construction of it, as to enable the court to say with reasonable certainty that this was the intention of the testator.
    “ If the death of the mother was the period of time to which the word then refers in the structure of the language of the will, it is the remotest antecedent of the three which have been referred to; and to reach it the construer must pass over the two others, which are more nearly proximate to it. In a doubtful case, surely, this is not a reasonable mode of construing the will.
    “But if all three of these constructions be equally doubtful, what then is the rule of law for construing a devise and bequest of this character ?
    “ The law always inclines to treat the whole interest in property as vested and not as contingent, and therefore in cases of doubt, it declares the interest vested: Letchworth’s Appeal, 6 Casey 175.
    “In cases of doubtful construction of wills, the law leans in favor of an absolute rather than a defeasible estate; of a vested rather than a contingent one; of the primary rather than the secondary intent; of the first rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible : Amelia Smith’s Appeal, 11 Harris 9.
    “ Where the meaning of a devise is uncertain, the law adopts the principles of the intestate law; for whoever claims against the laws of descent must show a satisfactory written title. The rule of equality of descent to relatives of the same degree, is so just, that the law adopts it when the law is to govern, and prefers it when the law is called on to interpret: Lippman’s Appeal, 6 Casey 180.
    “ For reasons above given, we think that the remainder of the estate of the testator vested in all his children living at his death, and that the heirs and legal representatives. of such of them as are dead are entitled to such share as the deceased children would have taken if living.”
    The court accordingly decreed * * * “that the remainder of the estate of the said testator is vested in all the children of the testator who were living at his death, and the heirs and legal representatives of such of them as were dead; the latter to take such share as their respective parents would have taken if living,” &c.
    Emlen Cresson and William P. Cresson appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      S. S: Hollingsworth and Gr. W. Biddle, for appellants.
    To what time does the word “then ” in the residuary clause apply ? To the death of the widow, because his chief object was to provide for her for life. It could not apply to his own death, for he has not mentioned it, and therefore it would not be grammatical, and words are to be so interpreted : Jarman on Wills, p. 748, sect. 16. The estates of the children were contingent till the widow’s death : Hannis v. McElroy, 9 Wright 216; McBride v. Smyth, 4 P. F. Smith 245; McKeehan v. Wilson, 2 Id. 74. The survivorship by operation of the word “then ” relates to the time of distribution, although the gift was to a class: Wharton v. Barker, 4 Kay & Johnson 488 ; Olney v. Bates, 3 Drewry 319 ; Johnson v. Morton, 10 Barr 245.

      A. S. Letehworth, for appellees.
    In case of doubt an interest is to be treated as vested: Letchworth’s App., 6 Casey 175; Amelia Smith’s App., 11 Harris 9; Passmore’s App., Id. 381; Manderson v. Lukens, Id. 31; Womrath v. McCormick, 1 P. F. Smith 504. Courts will not conjecture in favor of an intention against the general rule : 2 Wms. on Ex. 1084, note ; Redfield on Wills 635; Frame v. Steward, 5 Watts 433; Busby’s App., 11 P. F. Smith 111. The heir is never disinherited unless by express words or necessary implication: Bender v. Dietrich, 7 W. & S. 284 ; McIntyre v. Ramsey, 11 Harris 317; Malone v. Dobbins, Id. 296; Walker v. Walker, 4 Casey 40; Hitchcock v. Hitchcock, 11 Id. 393.
   Judgment was entered in the Supreme Court, January 19th 1874.

Per Curiam.

This is not an easy will to interpret, but after a careful study of it we think the clause in the fifth item, “ who shall then be living,” refers to the children living w'hen the property devised and bequeathed to them should vest in the children, to wit, at the testator’s death. A few of the reasons leading to this conclusion are these. The word “ then ” in the clause refers to no distinct time by grammatical construction or manifest intention. Its reference is to be discovered rather by the subject of the item, and the intention drawn from the whole will. Had the subject of the fifth item been wholly the same property devised and bequeathed to the widow for life, the subject itself would have indicated her death as the period of vesting in the children. But it is obvious that the property disposed of in the fifth item embraced the entire remainder of the testator’s estate. When he determined to settle his worldly affairs, he purposed to dispose of all his estate. He began by providing for his_ wife, and when he had finished that provision his mind evidently turned in the fifth item to making a provision for his children. They were very young; he himself was a young man, in good health, and with a prospect of much longer life than that which awaited him. It was natural he should think it would be years before his own death, while some of his children might die before him. His mind taking in the scope of these circumstances would naturally run forward to the distant period which rose to his view, and he would seek to settle his estate according to the circumstances as they thus appeared to him, by willing all the "remainder of his estate, not given to his wife, to those of his children who should be living at his death ; and therefore he devised and bequeathed this remainder to all of his children who should be then living. The sentence is evidently elliptical, not coming up to the fulness of his thought.

This intent is strengthened by the clear intent found in the sixth item, that his children should have an estate immediately at his death, for he appoints a guardian of their estate, while he appoints his wife guardian of their persons in accord with the evident intent drawn from the fourth clause, that she and they should remain together a.s a family, and their boarding be provided for out of the annuity. The intent in the fifth item interpreted along with the sixth item, to provide an immediate estate for his children at his death, is inconsistent with an intent to suffer their estate to become ambulatory until the widow’s death, if that be the period referred to by the word “then.” The expression “then” being obscure in reference, all the other considerations arise which give a preference to a vested estate instead of one that is contingent, and to furnish a substantial provision for the education and clothing of his children in addition to their boarding: otherwise his provision for them would be illusory, and a large amount of his estate left without any useful or proper disposition of it during the lifetime of his wife.

Upon the whole we think the Orphans’ Court came to a correct conclusion, and the decree is therefore affirmed with costs, and the appeal dismissed.


text:
    Hunter et al. versus Lanning et al.

    A mechanics’ lien was filed November 14th 1865; scire facias issued against contractor and owner March 16th 1866 : verdict for plaintiff April 6th 1870, new trial granted ; plea October 7th 1871, that five years had elapsed since entry oflien; replication, that continuances were obtained by defendant and that the delay was by their acts and not by default of plaintiffs. On demurrer to the replication that judgment had not been obtained within five years from the issuing of the writ, Held, that the lien was gone and judgment was properly entered for defendants.
    2. A debt may survive when the lien is gone, and an estoppel to prevent the denial of the debt will not keep the lien alive.
    3. The proceeding on a mechanics’ lien being in rem the lien must appear by the record and not by outside acts of estoppel.
    4. An owner cannot be prejudiced by Continuing the debt against the contractor.
    5. Fulton’s Estate, 1 P. F. Smith 204; Hershey v. Shenk, 8 P. F. Smith 382, followed.
    January 13th 1874.
    Before Agnew, 0. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 236, to January Term 1872.
    This was a scire facias on a mechanics’ lien, issued March 16th 1866, by John C. Hunter and others, trading as John C. Hunter & Co., against Charles Lanning, contractor, and Cyrus Cadwalader, owner.
    On the 14th of November 1865, the plaintiffs entered a mechanics’ lien against Lanning as contractor, and Cadwalader as owner, the claim being for $622.09.
    On the 21st of April 1866, an affidavit of defence was filed, and on the 8th of September 1866, the defendants pleaded: the issue was tried before a jury April 6th 1870, and a verdict rendered for the plaintiffs for $547.74. On the 28th of June 1870, a new trial was granted. On the 2d of October 1871, the defendants filed a special plea, to wit:—
    “ That plaintiff ought not to have and maintain the aforesaid action against defendant, because he says that more than five years have elapsed since the filing of the above claim and the issuing of the above writ, and no judgment has been entered therein, whereby the lien of both the claim and the scire facias above recited are gone,” &g.

    On the same day the plaintiffs replied: “ That a scire facias upon the said claim was duly issued within the period of five years from the filing of the said claim,, and several times after issue joined upon the pleas filed by defendant, of non assumpsit, payment, and set-off with leave, &c., the said defendant obtained continuance of the trial of the said case, and sci. fa. issues upon their own application for cause, that the sci. fa. was tried before a jury, and a verdict rendered for the plaintiff on the 5th April 1870, and that a new trial was awarded to the defendant, who subsequently, at another term of the said court, obtained another continuance of the same. So that the plaintiffs are not in default, and have not ceased to prosecute the same to judgment,-except by the acts of the said defendants themselves. And this they pray may bo inquired of by the court and the record.”
    The defendants demurred to the replication, that “ there is no averment in the said replication that any judgment has been obtained within five years from the issuing of the said writ.”
    The court gave judgment for the defendants on the demurrer.
    The plaintiffs took a writ of error and assigned for error the entering of judgment for the defendants.

      A. Thompson, for plaintiffs in error.
    The demurrer admits that the delay in reaching the final judgment was by their own default, and they cannot take advantage of it; it was a fraud; this would be sufficient to stop the running of the Statute of Limitations: Harrisburg Bank v. Forster, 8 Watts 12. On a scire facias to continue a lien none but a terre-tena-nt can plead that the land is discharged from the original lien: Silverthorn v. Townsend, 1 Wright 268.

      B. 0. McMurtrie, for defendants in error.
    By Act of June 16th 1836, sect. 24, Pamph. L. 699, 2 Br. Purd. 1036, pl. 57, a mechanics’ lien shall expire after five years from the time of filing unless revived by scire facias as in case of judgments.
    When no judgment is obtained on a scire facias on a judgment until more than five years after the writ issues, the lien of the original judgment is gone: Fulton’s Estate, 1 P. F. Smith 204. The suing out a scire facias will continue the lien of a judgment for five years if duly prosecuted, but if a judgment be not obtained until more than five years after issuing the scire facias, the lien of the original judgment is gone : Hershey v. Shenk, 8 P. F. Smith 382.
   Judgment was entered in the Supreme Court January 19th 1874.

Per Curiam.

The scire facias upon the mechanics’ claim in this case issued on the 16th of March 1866, but judgment was not obtained until the 4th of December 1871, more than five years intervening. The lien of the claims is therefore gone. The 24th section of the Act of 16th June 1836, 2 Bright. Dig. 1036, pl. 57, limits the lien to five years unless it is revived by scire facias in the mannei provided by law in the case of judgments, in which case the lien shall continue in like manner for another period of five years. When no judgment is obtained on a scire facias to revive a judgment within five years after the issuing of the writ, the lien is gone : Fulton’s Estate, 1 P. F. Smith 204. So it is upon a mechanics’ claim: Hershey v. Shenk, 8 P. F. Smith 382. The sci. fa. must be duly prosecuted: Ward et al. v. Patterson, 10 Wright 372.

The lien and debt are different things, the debt may survive in some cases where the lien is gone, as in the case of a judgment in personam. Hence an estoppel to prevent the denial of the debt will not keep the lien alive. The proceeding here is against the building, and being in rem the lien must appear by the record and not by outside acts of estoppel. The owner of the property is not to be prejudiced by the continuation of the debt as to the contractor.

Judgment affirmed.


text:
    Bujac’s Appeal.
    1. A testator gave the residue of Ms estate to his executor in trust for his son and daughter “ and to their issue as follows: one half being the share of my said son, to be invested, the net income only to be paid to and applied by his guardian as far as necessary for his education and maintenance, and the principal with any accumulations that may have accrued thereon to be paid to him on attaining twenty-one years." In case of his death before twenty-one leaving issue, to be kept in the same way, the income to be paid to their guardian for their education and maintenance and the principal and accumulations to go to them at twenty-one years. If he died without issue in his minority his share to go to the daughter. The share of the daughter was disposed of in the same way. In case of the death of both under age and without issue to go to testator’s next of kin. By a codicil he directed the income of his share to be paid to his son until he attained thirty years and then the principal and arrears of interest to be conveyed to him absolutely, but if he should die before thirty without issue his share to go to his daughter absolutely. The daughter died in the life of the testator after the date of .the codicil. Held, that the daughter’s share went to the son under the restrictions of the codicil and vested in the trust until the time fixed for payment to Matthew.
    2. The daughter’s share passed to the son under the will and the bequest to both passed to him as an entirety.
    March 15th 1874.
    Before Agnew, C. J., Mercur and (Jordon, JJ. Sharswood, J., at Nisi Prius.

      Appeal from Nisi Prius, No. 6, to July Term 1878. In Equity.
    This was a bill filed by M. Lachausser Bujac, against The Philadelphia Trust, Safe Deposit and Insurance Company, trustee under the will of Matthew L. Bujac, deceased.
    The decedent died in 1871, having made a will dated November 7th 1867, and codicil dated December 15th 1868; they were proved June 1st 1871.
    By the will the testator directed that $100,000 of his property should be set apart and applied for the benefit of his two children as thereafter provided in his will. After a number of bequests he further directed:—
    “ Fifth. The full amount hereinbefore directed to be deducted and set apart for their benefit, together with all the rest, residue and remainder of my estate, real and personal, remaining after the execution of the foregoing provisions, I do hereby devise and bequeath' to my executor or executors, and his or their successors, in trust for my children Matthew L. Bujac, now about twenty years of age, and Blanche Bujac, now about eighteen, and to their issue as follows: one half thereof, being the share of my said son, to be and remain securely invested, the net income thereof only to be paid to and applied by his guardian as far as necessary for his education and maintenance, and the principal thereof, with any accumulations, that may have accrued thereon, to be paid to him on his attaining the age of twenty-one years. In case of his death before that event, leaving issue him surviving, his share to go to such issue on the same conditions, viz.: that my executor shall keep the same securely invested, and pay over the net income thereof to the guardian of such issue, to be applied by him for its support and education, the principal thereof to be transferred and paid over to such issue upon attaining the age of twenty-one years. In case of the death of my said son during his minority, leaving no issue him surviving, or in case of the death of any such issue before attaining the age of twenty-one, the share herein intended for the same shall go to my daughter Blanche Bujac. The remaining half thereof, being the share of my said daughter Blanche, is in like manner to be securely invested, the net income thereof applied to her maintenance, and the principal to be paid to her on her attaining the age of twenty-one years, unless she shall marry a Frenchman in France before that event, in which case the said share shall be transferred and paid over to her upon such marriage. If she die unmarried before attaining her majority as aforesaid, then her share shall go to her brother hereinbefore named. And in case both such bequests shall fail to take effect as above provided, in consequence of the death of my children or their issue, then I desire that the same be distributed to my next of kin thereto entitled under the statute of distribution of intestate estates in Pennsylvania.” * * *
    The codicil was: “ Item. I do order and direct that all the share, proportion and interest of and in my estate, which I have devised and bequeathed to my son, Matthew L. Bujac, I do give, devise and bequeath the same and every part thereof unto my executor, Henry M. Phillips, of Philadelphia, in trust, to hold and keep the same properly secured and invested, and to pay the net profits, income, dividends and interest thereof, unto my said son, as and when received, until he attains the age of thirty years, and when he shall attain that age, to transfer and convey the whole of the same, principal and interest, and all arrears thereof, unto my said son absolutely. But if my said son shall die before attaining the age of thirty years, then the said share shall go to his issue, if he leaves any, and in default of issue the same and every part thereof shall go to my daughter Blanche Bujac, absolutely, her heirs and assigns.”
    He appointed Henry M. Phillips, Esq., executor of his will, and letters testamentary were granted to him.
    The daughter Blanche died after making the will and codicil (but before the testator), a minor, unmarried and without issue.
    Mr. Phillips settled his account as executor; it was confirmed. On his own application he was discharged from his trust, and the defendants appointed trustees in his place. The residue, under the fifth clause of the will, in the hands of the defendants as such trustees, amounted to about $5140,000, all invested in personal securities.
    The plaintiff was the son of the testator, and at the filing of the bill had not attained the age of thirty years.
    After setting out the foregoing facts, the bill concluded:—
    “ That he is advised and believes that as to one-half said amount so devised and bequeathed, and held by said trustees, that is the portion which he takes by limitation on remainder upon the death of his sister, Blanche Bujac, if not as to all the said estate, he takes, under the provisions of said will, an absolute vested interest, and that there is no subsisting valid trust as to that portion, but that he is entitled to possession of the same, and to a transfer thereof, and prayed a decree that he took an absolute vested interest in the said half of said estate, coming to him by limitation under said will, by reason of his sister Blanche’s death, and that deféndants should be ordered to transfer, assign and set over to him the securities in which said estate was invested.”
    The answer admitted the facts set forth in the bill, and as to the questions of law submitted to the judgment of the cour-t.
    The ease was heard on bill and answer, and the court (Read, C. J.) decreed that the bill be dismissed.
    The plaintiff appealed, and assigned the decree for error.

      H. M. Phillips, for appellant.
    The mere postponement of payment does not prevent a legacy from vesting: 1 Roper on Legacies 376. Under the terms of these legacies the gift was absolute: Amelia Smith’s Appeal, 11 Harris 9; Doyle v. Mullady, 9 Casey 264. When an absolute estate is given, its alienation cannot be restrained: Naglee’s Appeal, 9 Casey 89; Lantz v. Trusler, 1 Wright 485. In doubtful eases the interest is1 construed to be vested: Manderson v. Lukens, 11 Harris 31; Rewalt v. Ulrich, Id. 388. Blanche’s share accruing to her brother by her death, is not subject to the restrictions in the codicil: Ware v. Watson, 7 D., M. & G. 248; Hawkins on Wills 268 ; Ex parte West, 1 Bro. C. C. 575; Crowden v. Stern, 3 Russ. 217; Pain v. Benson, 3 Atkyns 80; Masden’s Estate, 4 Whart. 428.

      JR. L. Ashmead, for appellees.
    — The word “interest” in the codicil includes accruing shares: Douglass v. -, 14 Beav. 351; Hawkins on Wills 269.
   Judgment was entered in the Supreme Court, January 19th 1874.

Per Curiam.

The share of Blanche Bujac not having vested in her, but lapsing by her death in the lifetime of the testator, went over'to Matthew L., her brother, under the terms of the testator’s original will. When it reached the hands of the trustees appointed to take Matthew’s share, it came to them as an entirety, and not as part Blanche’s and part Matthew’s. Consequently, the trust attached to the whole devise and bequest. Eor the same reason the codicil to the testator’s will operated on the whole of Matthew’s estate as an entirety. The words are large enough to receive the whole, and the death of Blanche before the codicil took effect, just as in the original will, struck out of it all that related to Blanche. The whole estate vesting in Matthew, is therefore governed by the codicil in connection with the will, and vests in the trust until the time fixed by the testator for payment to Matthew. Decree affirmed.