Hoffman v. Hoffman , 26 Ala. 535 ( 1855 )

GOLDTHWAITE, J.

—The legal questions presented for our determination arise upon these facts : In January, 1848, Jacob Hoffman executed a paper purporting to be his last will, by which he bequeathed one third of all his property, real and personal, to his wife for life, and at her death to certain of his children who are named in the instrument; and the remaining two thirds of his property to be equally divided among certain of Iris children, who are also named. There are other provisions, which it is unnecessary to notice, as they have no bearing on the points involved. The writing has an attestation clause, and was published by the testator before two witnesses, who subscribed their names as such ; the publication being made and the witnesses attesting at different times, and in the presence of the testator, but not in the presence of each other. Jacob Hoffman died in February, 1853 ; and upon these facts, the sole question is, whether the instrument is valid as a will of both the real and personal property, or of either the one or the other.

That the instrument is not effectual as a will of real estate, under the law in force at the time of its execution, (Clay’s Dig. 596, § 1,) which required three attesting witnesses, is conceded ; but at the time of the testator’s death, this act had been repealed, and by the law then in force, but two witnesses were required. — Code, §1611. Assuming, for the present, that the instrument was duly executed under the new law, the only question is, which of the two statutes governs. The Legislature unquestionably have the power to prescribe rules for the execution-of wills, before a right has been vested in the devisee, legatee, or heir, by the death of the testator ; and it was, therefore, entirely competent for them to fix the number of witnesses which were essential to the validity of any will, whether made before or after the passage of the statute; and in this aspect, the question is one of statutory construction simply. Does section 1611, which provides that no will shall be effectual to pass real or. personal property without two witnesses, embrace wills made before the passage of the act?

In Gilmore v. Shuter, 2 Mod. 310, it was held, that the statute 29 Car. II, c. 3, which made, certain agreements void unless in writing, did not extend to parol agreements made before its passage ; and the court assimilates it to the case of a will made before the statute, which (the judges say) would be good, although not made in pursuance of it. So, in Ashburnham v. Bradshaw, 2 Atk. 36, where the question arose upon a devise to charitable uses, made before the mortmain act, it was held by Lord Hardwick, that the act did not apply to wills made before its passage, although the testator died after it took effect; and in the case of The Attorney General v. Andrews, 1 Ves. Sr. 224, the samo doctrine as to the application of that act to wills made ■ before its passage was re-asserted. The principle which wc extract from these decisions is, simply, that where the words do not force, them, the courts will not construe a statute so as to defeat a will or bequest which would have been valid, had the testator died immediately after making it; and to that extent we regard them as authority. But it clo.es not follow, that if the effect of the statute was to sustain, rather than invalidate — to save, rather than to destroy — the same rule of construction would have been adopted. In many of the States, the artificial rule which prevented a devise, no matter in what words expressed, from passing lands subsequently acquired, has been changed by statute providing that the real estate acquired by the testator after the execution of his will shall pass by general words, unless a contrary intention appear on the face of the will; and in New York, Massachusetts, and New Hampshire, it has been held, that those statutes extended to every case where the testator died after they took effect; thus giving to them, in one sense, a retro-active operation, — De Peystrr v. Clendening, 8 Paige 295; Bishop v. Bishop, 4 Hill (N. Y.) 138; Cushing v. Aylwin, 12 Metc. 169; Pray v. Waterston, ib. 262; Loveren v. Lamprey, 2 Fost. 434.

It is true that the courts of Pennsylvania, Connecticut, and North Carolina have confined the operation of similar/statutes to devises made since their passage; resting- their decisions on the cases of Gilmore v. Shuter, and Ashburnham v. Bradshaw, supra, and the general rule of construction against the retro-active operation of statutes.—Mullock v. Souder, 5 W. & S. 198; Brewster v. McCall, 15 Conn. 274; Doe v. Speight, 9 Ired. Law 57. With all deference, we think the error of these decisions arises from mistaking the true principle of the cases on which they rest, and giving too much force to the rule of construction. The object of the Legislature was, to preserve and give effect to the intention of the testator, by abolishing a purely technical rule, which too frequently defeated it. 'Whenever a statute is levelled against an abuse, or in furtherance of an acknowledged principle of right and justice, every reason exists for its most liberal application; and in'such eases, it may fairly be presumed, that it was the intention of the Legislature that the boon of the statute should be extended to every case which its words could properly include.

We do not say, that section 1611 of the Code, in its operation on wills of real estate made before it took effect, furnishes as strong an illustration in favor of the rule of construction for which we contend, as the statutes, to which we have referred, giving effect to devises; but the same principle applies in each case. The old law required three witnesses; but the Legislature' has said, in effect, that this number is more than is necessary — that two are sufficient. If the statute had increased the number, and thus superadded a condition, we should then say, as the Court of King’s Bench said in relation to the statute of Car. II, that it applied only to wills made after its passage; but when its object is, not to abridge, but to enlarge the privileges of the testator, and to give effect to his will, then it falls within the principle by which devises, made in words which, by Legislative construction alone, include lands subsequently acquired, are extended to wills made before the law took effect. The purpose of the statute was for the prevention of fraud ; and if the Legislature have said that two witnesses are enough to accomplish this object, and have not limited its application, why should courts do it? The fair presumption is, that it was intended to meet every case to which the provisions of the section could legitimately extend ; and giving effect to this intention, we must apply it to every will of real estate, where the testator died after the Code went into operation. In relation to wills of personal property, a different rule prevails ; for, in respect to them, the operation of the statute is to ^bridge the right of the testator, and upon the authority of Gilmore v. Shuter, and Ashburnham v. Bradshaw, supra, they would be governed by the old law. In the present case, however, the record shows that the will was established by two witnesses, which is all the former law required.—Johnson v. Glasscock, 2 Ala. 218.

In reference to the objection which was urged in argument, that the witnesses, although they signed in the presence of the testator, did not attest the will in the presence of each other, it is only necessary to observe, that the statute does not require this in terms; and although some of the earlier cases seem to have thought it necessary under the statute of Oar. II, c. 3, the language of which is in this respect almost identical with our own, (Cook v. Parsons, Prec. in Ch. 184; Dormer v. Thurland, 2 P. Wms. 506,) the contrary was expressly ruled in Smith v. Codron, 2 Ves. Sr. 455, which decision has been followed both in England and the United States.—Grayson v. Atkinson, 2 Ves. Sr. 454; Westbeech v. Kennedy, 1 Ves. & B. 362; Wright v. Wright, 5 M. & Pay. 316; Dewey v. Dewey, 1 Metc. 349; 4 Kent’s Com. (5th ed.) 516.

The will being perfectly executed, both in relation to the real and personal property, the charge of the court, which declared it void as to the former, was erroneous.

Judgment reversed, and cause remanded.

Rice, J., having been of counsel, did not sit in this case.