Hegarty's Appeal , 1874 Pa. LEXIS 110 ( 1874 )

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.