Aubert's Appeal , 16 W.N.C. 545 ( 1885 )

Mr. Justice Paxson

delivered the opinion of the court

The will of George P. De Silver, a citizen of this state, was proved June 6th, 1873, by which lie gave $60,000 in trust, to invest the same and pay the income as follows: “To my wife Elizabeth DeSilver, during her life, and upon her decease to pay one half the said principal sum to such person or persons, and in such manner as she, my wife, may by her last will and testament duly executed according to the law of her domicil order and appoint, and in default of such appointment the said one half of the said principal sum shall form part of my residuary estate.”

The widow of Mr. De Silver married the appellant, who survived her. At the time of her death she was domiciled in Paris, France. Previous to her death she attempted to exercise the power given her by her first husband’s will, in favor of her second husband. This was probably not the direction Mr. De Silver intended his money to go. But with that we have no concern. If the power was legally executed the second husband will get the money. We shall treat it as a dry question of law. The contest is between the husband on the one hand, and the residuary legatees, who are the brother and sister of the testator, on the other. The fund is in the hands of the Pennsylvania Company for Insurance on Lives and Granting Annuities, trustee in place of Henry M. Phillips, deceased, who was the original trustee under Mr. De Silver’s will.

When the appellant appeared before the Orphans’ Court to claim this fund he produced an Acte de Notariete, executed by Mrs. Aubert, his wife, on the sixth of September, 1877, and disposing of her property at her death as follows: “ To Monsieur Aubert, her husband, who accepts it, here present, the whole of her property, real and personal, which will compose her estate after her death, of whatever value it ma}'- be, and wheresoever the same may be situated, without any exception or reserve; that Monsieur Aubert in case of his survivorship, may enjoy and dispose of said property as something belonging to him in f-ull ownership, from the day of the death of said donatrix.”

He also produced a will executed in Paris by Mrs. Aubert, dated May 18th, 1876, and which contained the following clause: “ I the undersigned Elizabeth Claire Aurelie Paley make the following dispositions: If I die before my husband, Jean Ernest Aubert, I leave him all my fortune, in full ownership, so that he may dispose of it as he shall deem advisable.”

By the law of France testaments are of two kinds, viz. 1. By public act, which must be executed before two notaries in the presence of two witnesses, or before one notary in the presence of four witnesses; and 2. By holograph, which is not valid unless it has been written, dated and signed exclusively by the hand of the testator. The will in question was a holograph will and appears to have been properly executed. The Acte de Notariete was a donation inter vivos. We need not discuss the latter paper at length for the reason that, according to the law of France, it is not a testament. Such gifts are conventional in their nature, partaking of the character of agreements or covenants. Ordinarily they are irrevocable, and can only affect property then the possession of the donor. In the case of husband and wife, however, they are revocable, and may include property to be acquired in the future.

It is conceded that the holograph will of 1876 was properly executed and that it is a French will. It is contended, however, that it is not effective to pass the fund, for two reasons : 1st. That it was revoked by the subsequent Acte de Notariete, and 2d. That if not revoked, it contains no reference to the power, and is not an execution thereof.

The usual mode of revoking wills is by a subsequent will or codicil containing an- express clause of revocation, or provisions which are inconsistent with the-former will: Jarman on Wills, 886. And the same writer lays down the doctrine, which I do not understand to be seriously disputed, that an instrument purporting to be a conveyance, but incapable of taking effect as such, may operate to revoke a previous devise. But the reason of this rule evidently is, that the subsequent conveyance was inconsistent with the devise, and disclosed an intent to revoke it. But here the Acte de Notariete is in entire harmony with the previous will. It passed the same estate and to the same person. It was evidently intended to confirm the will. It was not necessary; it adds no strength to the will, but to say that it revokes what it was intended to make sirre is a contradiction of terms.

It is true there is an apparent difference in the disposition of the property by the two instruments. By her will Mrs. Aubert gives her husband “all my property in full ownership, so that he may dispose of it as he shall deem advisable,” while by the Acte tíre gift is reduced in the event of there being children by the marriage to “one quarter in ownership and one quarter for life.” But this difference is only apparent. I understand by sections 913, 916 and 920 of the French Code, that the Acte would not be revoked by the subsequent birth of children, because the said Code would, in such event, reduce the portion of which disposition had been made in the gift iniei' vivos exactly as in the testament. So that this provision in the Acte was surplusage; the Code would have written it in that instrument in case children had been born of the marriage.

The second objection to the will presents a question of more difficulty. As before observed, the will makes no reference to the power; it purports only to pass the estate of Mrs. Aubert ; the fund in question is a part of the estate of George P. DeSilver, over which he gave his wife a power of appointment. It is very clear that by the law of Pennsylvania as it existed at the time this will was written, the will would not have been an execution of the power. But after the date of the will and before the death of Mrs. Aubert, the Act of 4th June, 1879, P. L. 88, was passed by the legislature of this state, the third section of which provides inter alia that “ a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend, as the ease may be, which he may have power to appoint in any maimer he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.” And the fourth section enacts that “this Act shall operate and go into effect as to the wills of all persons who shall die after the date of the Act.”

It was argued with much plausibility that the Act of 1879 could not be applied in this case for the reason that inasmuch as it was not in existence when the will was executed, Mrs. Aubert could not have had it in contemplation when she made said will; hence her omission to refer to the power was not an accident, but the result of an intent to give her husband only her own estate. This course of reasoning, however, ignores the purpose of the Act, which was to make a general will execute the power in all cases when a contrary intent does not appear upon the face of the will. When such contrary intent does appear the Act has no effect, for it was not intended to thwart the intent of the testator, but to cany it into effect. Experience had shown that in many instances a power had been defectively executed through ignorance or the carelessness of the draftsman of the will. The Act declares substantially that a gift, or devise of all of a man’s estate, shall carry with it property over which he had a power of appointment by will; in other words that a general will is an execution of the power. And it assumes that such was the intent of the testator unless the contrary intent appears by the will. It is true we must presume that Mrs. Aubert knew the law when she made her will, and that as it then existed a general will would not execute a power. But the same is true of the many other persons whose failure to properly execute a power led to the passage of the Act of 1879. The recognized presumption is that no one is ignorant of the law, yet every intelligent man knows that this is an extremely violent presumption; it is a convenient, if not necessary fiction, nothing more. We cannot impute to Mrs. Aubert a greater knowledge of the law upon this subject then was possessed by hundreds of others who have failed in the execution of powers. We would equally err in imputing to her less. The probability is that she knew nothing about it.

The Act of 1879, as we have.seen, operates upon the wills of all persons who shall die after the date of the Act. It is not confined to wills which are executed after the date of the Act. The reason of this is plain. The Act is based upon the fact that testators in many instances are either ignorant of the law or neglect to comply with it. In order that their intent may not by such means be defeated, it declares that under certain circumstances a general will shall execute a power. We are of opinion that this will comes within the Act of 1879.

At first I was disposed to regard the provision in Mr. De Silver’s will that the power should be exercised by his wife in and by her “last will and testament, duly executed according to the law of her domicile ” as a restrictive clause. Subsequent reflection has changed my view upon this point and I am clear that it was intended as an enabling clause. Mr. De Silver was a citizen of this state and we have no reason to suppose he would not have been satisfied with an appointment in conformity with Pennsylvania law. But his wife was of French birth and he evidently contemplated her being domi ciled abroad. He probably knew if be made no provision upon the subject the validity of the appointment must be determined by the law of this state. This would require a knowledge of our laws on the part of whoever prepared her will in a foreign country, and might involve a failure. In order to facilitate the execution of the power he provides that it may be done in conformity to the law of her domicile.

It is too plain for argument that the donee of this power intended to execute it and give the filed to her husband. It was said in Bingham’s Appeal, 14 P. F. S., at page 349: “It may be admitted that the intention of the donor of a power is the true criterion to determine its execution.”

The decree is reversed at the cost of the appellees ; the adjudication of the auditing judge is confirmed, and it is ordered that distribution be made in accordance therewith.