Taylor v. Mitchell , 1868 Pa. LEXIS 91 ( 1868 )

The opinion of the court was delivered, by

Sharswood, J.

There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the legislature: Neff’s Appeal, 9 Harris 243; Fisher v. Earley, 11 Id. 501; Becker’s Appeal, 3 Casey 52. Lord Bacon expressed concisely the same rule: Ñeque enimplaeet Janus in legibus.

Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative. When a testator makes a will, formally executed according to the requirements of the law existing at the time of its execution, it would unjustly disappoint his lawful right of disposition to apply to it a rule subsequently enacted, though before his death.

While it is true that every one is presumed to know the law, the maxim in fact is inapplicable to such a case; for he would have an equal right to presume that no new law would affect his past act, and rest satisfied in security on that presumption.

But the words of the act entitled “ an act relating to corporations and to' estates held for corporate, religious and charitable uses,” passed April 26th 1855, Pamph. L. 328, do not justify such a construction. It provides, § 11, “ 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 same 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 true, that every will is ambulatory until the death of the testator, and the disposition made by it does not actually take effect until then. General words apply to the property of which the testator dies possessed, and he retains the power of revocation as long as he lives. The act of bequeathing or devising, however, takes place when the'will is executed, though to go into effect at a future time. The language of the Act of Assembly, in its ordinary use and meaning, relates to wills thereafter to be made. It is only by a technical construction that it can be made to bear a different sense. Such a construction might justly be applied to a law which on its face appears to be retrospective, in order to restrain it to a prospective operation, but it would certainly be a novelty to apply it conversely.

The authorities sustain this view.1 Most of them have been collected and reviewed by our brother Read, in Gable’s Executors v. Daub, 4 Wright 217. The case of Ashburnham v. Bradshaw arose under the statute 9 Geo. II. c. 36, which uses the words “ shall be given;” yet a will published before the statute went into effect, though the testator survived that period, was established, and the trust of the charity carried into execution’. This was a decree by Lord Hardwicke, upon a certificate of eleven of tbe twelve judges to whom the case bad been referred for their opinion on tbe validity in law of tbe devise, and although Lord Northington is reported to have remarked, in Attorney-General v. Hartwell, Ambler 451, that be thought a great deal might be said in that case against tbe determination, yet it has been so repeatedly and expressly recognised, that its authority must now be conceded as firmly established: Attorney-General v. Lloyd, 1 Ves. 33; s. c. 3 Atk. 552; Willet v. Sandford, 1 Ves. 178, 186; Attorney-General v. Andrews, 1 Id. 225; Mulback v. Souder, 5 W. & S. 198; Gable’s Executors v. Daub, 4 Wright 217.

Decree affirmed.