Appeal of Fidelity Insurance Trust & Safe Deposit Co. , 108 Pa. 492 ( 1885 )

Mr. Justice Clakk

delivered the opinion of the court October 5th, 1885.

By the act of 4th June, 1879, sec. 1, it is provided that “every will shall be construed with reference to the real estate and personal estate comprised in it, • to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will."

• Unless therefore a contrary intention appears by the will of Julianna B. Carman, executed 21st February, 1881, it must speak and take effect as if it had been written immediately before her death, on the 18th August, 1883; if it be read as so written the eighty-one shares of the Provident Life and Trust Company of Philadelphia, of the par value of $100 per share, at that time standing in her name on the books of the company, are clearly comprised in the terms of the bequest to the B idelity Company. Whether a contrary intention appears by the will is, therefore, the precise question to be determined.

The general rule of the common law was, that a will of realty was construed to speak from its date; real estate which the testator did not have at the time of the making of his will, but which he subsequently acquired, would not pass under it, however express, comprehensive and general the words of the will, or however manifest the intention of the testator. A will of personalty, however, was not referable to the state of the property, at the time of the making of the will, but was construed to take effect from the date of the testator’s death, unless there were expressions in the will showing it was intended to describe the property with reference to the former and not to the latter date. By sec. 10 of our act of April 10th, 1833, Purd. Dig., 1476, pi. 11, it was provided “that the real estate acquired by a testator, after making his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will.” It will be seen that this section placed wills of realty and personalty on the same footing in part only, and the first section of the act of 4th June, 1879, above referred to, was enacted to complete what had only been partially effected by the act of 1833.

The bequest in the will of Julianna B.. Carman is doubtless specific; it is of a particular thing, specified and separated from all other tilings, constituting the testatrix’s estate; Walker’s Estate, 3 Rawle, 229; Blackstone v. Blackstone, 3 Watts, 335; Ludlums’ Estate, 3 Clark, 275; Walton v. Walton, 7 Johns. Ch., 258. If at the testatrix’s death these shares had not been found the legacy would have been adeemed, and, in case of deficiency of assets, it would not have been subject to abatement with general legacies. But a specific bequest may be of a particular thing, in existence and constituting part of the estate of a testator at the time of the making of his will, or it may be of a particular thing, of which he was not then possessed, but of wbicb he was possessed, at his death. It is sufficient if it can be specified and distinguished from the rest of the testator’s estate at the time of his decease. Fontaine v. Tyler, 9 Price, 94; Stephenson v. Dowson, 3 Beav., 342; 2 Redfield on Wills, 133; and legacies which would have been specific before the statute are specific still. Bothamley v. Sherson, L. R., 20 Eq., 304. That the legacy is specific is not, therefore, necessarily decisive of the question under consideration. It is in the application of the rule of the statute to specific legacies that we meet with most difficulty. No case in this court has been called to our attention which involves a construction of the act of 1879, or which defines the different measure of proof, which may be required to establish a contrary intention under the statute from that which was adjudged sufficient before its passage. Roney v. Stiltz, 5 Wh. 381, was a decision under the act of 1833, but will be found to be in accord with the views hereinafter expressed with reference to the effect of the act of 1879.

The common law rule prevailed in England until the passage of the Wills Act of 1 Vic., c. 26 (1838), the twenty-fourth section of which is identical in form With the first section of our statute of 1879. The several adjudications, which had been made upon the íormer in the courts of England are important therefore, in the construction which we should put upon the latter; these adjudications may indeed be supposed to have been in the mind of the legislature when this séetion of the English statute was incorporated into ours.

The rule as to wills of personalty at the common law before the passage of the Wills Act was generally expressed in language not greatly different from that used in the statute, but the effect of the statute, as to personal bequests, under the construction subsequently put upon it by the courts, was to require a clearer proof, and the use of more decided terms in the will, to establish a contrary intention. Thus, where before the statute the testator had bequeathed the whole of some one genus of his property, by the description of all his property of a ■ particular kind, as, “ all debts due to me on bond,” or “ all my stock,” or “my share,” the courts had determined that he intended only so much as he had at the date of his will: Douglas v. Douglas, Kay, 404; but, after the passage of the Wills Act, it was held in Goodlad v. Burnett, 1 K. & J., 341, that the. effect of that enactment was to require some plainer indication of contrary intention, and that, therefore, where a testatrix in 1850 bequeathed “ my new three and. a quarter per cent, annuities,” the bequest comprised all at her death.

So Vice-Chancellor Stewart, in Langdale v. Briggs, 3 Sm. & G., 246, where the Words designating the bequest were, “ the estates of wbicb I am seised,” said: “ Tbe words, no doubt, in tbe ordinary sense, being wholly in the present tense, refer to tbe date at wbicb they are used. But it is because tbe language of wills is so much in tbe present tense, and used as speaking at tbe time of tbe date and making of tbe will, tbat tbe Act of Parliament bas enlarged tbeir interpretation beyond tbe present tense, and bas declared tbat the will is to speak as if executed immediately before tbe testator’s death. Even if the testator bad said, ‘ I devise tbe lands of wbicb I am now seised,’ I can find nothing in tbe context showing an intention contrary to tbe rule of tbe 24th section of tbe Act.”

Referring to tbe several cases cited by tbe appellants in support of tbeir contention here, we find tbat tbe language by which tbe bequests in each case are designated is of a generic character, that is to say tbe bequests are of tbat wbicb may be increased or diminished in tbe life-time of tbe testator. In Hepburn v. Skirving, 4 Jur. N. S., 651, tbe bequests were of “ all tbe shares which I now possess in tbe C. bank,” of “ the shares I am possessed of in tbe A. bank,” and of “ the money I possess in the company’s fund.” Afterwards the testator’s property of these kinds was much increased, and although tbe words employed were in tbe present tense, qualified even by tbe adverb “ now,” tbe will was construed as having reference to the testator’s death when the investment first became operative: In Langdale v. Briggs, supra, tbe bequests were of “ tbe estates of wbicb I am seised; ” in Lilford v. Keck, 30 Beav., 300, “ all lands of orto wbicb I am seised or entitled in fee simple ; ” in Trinder v. Trinder, L. R. 1 Eq. 695, “ my shares in the Great Western Railway; ” in Wagstaff v. Wagstaff, L. R., 8 Eq., 229, “ all my ready money, bank and other shares, and any other property tbat I may now possess;” in York v. Brown, cited in L. R., 7 Ch. Div., 431, “ all bis messuages, farms, lands and hereditaments situate in tbe parish of Great Bowden; ” .in Bothamley v. Sherson, L. R., 20 Eq., 304, “all my stock in tbe Midland Railway Company;” in Everett v. Everett, L. R., 7 Ch. Div., 428, a release of all claims in respect of certain advances made and of “ all other money clue from him;” in Russell v. Chell, L. R., 19 Ch. Div., 432, “ all bis share aird interest in a certain partnership business, and of and in tbe real and personal estate employed or invested therein, and of and in tbe partnership debts, securities and moneys to wbicb be might be entitled at bis decease; ” In re Ord, L. R., 12 Ch. Div., 22, “all bis leaseholds situate,” &c., &c.

The several bequests in all these cases have upon tbe same general ground, already stated under tbe Wills’ Act, been construed to have reference to tbe death of tbe testator. Other cases are cited, not strictly applicable to the question under consideration; in some of them the qualifying word “now” serves merely as a description of the subject matter of a bequest, as In re Midland R. R., 34 Bear., 525; and in some the subsequently acquired estate was an outstanding or reversionary interest, or a renewal of a leasehold, in the property comprised in a devise, as in Saxton v. Saxton, L. R. 13 Ch. Div. 359; Miles v. Miles, L. R., 1 Eq., 462; Castle v. Fox, L. R., 11 Eq., 542; Garrison v. Garrison, 5 Dutch., 154, and Struthers v. Struthers, 5 W. R., 809. To all cases of this character this construction of the act has without doubt been uniformly applied; indeed it would appear that they were in the contemplation of the law-making power when the Wills Act was passed. “ The applicability of the new enactment to the case of a renewed lease,” says Mr. Jarman in his Treatise on Wills, page 606, “ cannot be questioned, and its application has been extended to cases where, after making his will disposing of the demised property, the lessee has bought the reversion in fee; the newly-acquired interest passes by the will, notwithstanding a reference (commonly found in such cases) to the term for which the property is at the time held; this being considered only a' mode of describing the property, and not as equivalent to saying, “I give my present interest and nothing else.” The same principle hag been applied to a devise of land. Thus in Strevens v. Bayley, 8 Ir. Com. Rep., L., 410; where the testatrix devised to the plaintiff “the lands of Curramore,” and devised all the residue of her real estate to the defendant. The townland of Curramore had originally been held in undivided moieties, and there had been a partition under which the testatrix was, at the date of her will, entitled to one portion in severalty; and after the daté of her will she purchased the other portion. It was held that the whole townland passed to the plaintiff. Monahan, C. J., who delivered the judgment of the court, considered that the description comprised the whole townland, and, consequently, included all in the townland of which the testatrix was seised at her death.

But the bequest in the will of Julianna B. Carman is not of the whole of any class of 'her property — a specific gift of an undefined amount — as of “all my shares in the Provident Life” &c., it is of “eighty-one shares,” “nowstanding in my name on the books of the company.” The words employed are used in no merely generic sense; the property is particularly specified by number and name. She had at the time of the making of her will, just that particular number of shares, and when she speaks of them as she did, she manifestly refers to an actually existing state of things; her language therefore must be taken as referential to the time of the writing of her will. The adverb “now,” if used in a bequest of “all her shares,” or “her shares standing” &c., under the authority of the eases cited, would not perhaps have been sufficient to establish any “ contrary intention,” as, in that connection, it would with equal propriety be referable to the date of the will or of the testatrix’s decease. But when the bequest is of a certain number of actually existing shares, “now standing on the books of the company,” we may readily conclude that the testatrix intended to limit the bequest to the identical shares she then had; if she so intended, then nothing else was given; if she referred to an existing state of things she certainly did not give the forty shares not then owned by her. It is true, that the eighty-one shares were afterwards changed to forty and one half shares, but the question is not one of identity in number, but of the identity 'of the subject of the gift. 0

The case of Cole v. Scott, 1 Mac. & G., 518, has been greatly relied on; in that case the gift, it is true, was of “ all the estates of which I am now seised and possessed; ” but the testator’s meaning of the word “now” was there ascertained from the use of the same word in other parts of the will; the context clearly showing that the testator alluded to the time of the making of Ms wül.

It is not necessary, perhaps, that this contrary intention must be expressed in so many words, but it must be clear and free Mom doubt, on the fair construction of the will, and it is difficult w.e think to conceive of a ease in wlrich that intention is more plainly expressed than here.

For the reasons stated, we are of opinion that the court was right in confirming the adjudication of the account of the executrix.

The decree of the Orphans’ Court is therefore affirmed, and the appeal dismissed at the cost of the appellant.

Mekcue C. J., and G-okdon J. dissent.