Spain's Estate , 327 Pa. 226 ( 1937 )

Argued April 22, 1937. Testatrix, a single woman, died July 20, 1935, leaving a holographic will dated February 6, 1934. She made a bequest "to the Woman's Hospital, to found a room for the free treatment of sick Phila. Public school teachers." There were no attesting witnesses, though the law in force in 1934 required them. For want of such witnesses the bequest was held void and the property was awarded to cousins, next of kin. The Hospital appeals and contends that the amendment of July 2, 1935, P. L. 573, to section 6 of the Wills Act of 1917, P. L. 403, 20 PS section 195, abolished the requirement of subscribing witnesses, that it applied to this will, and that the decree was therefore wrong. The learned court below was of opinion that the amendment was prospective only, and that, as her will was made before it was passed, the validity of the bequest must be determined by the law existing when the will was executed.

The decision depends on a reading of the Wills Act as amended. The settled rule is that after a statute has been amended, it will be read as if the amendment had originally been part of it — as if a new act had been adopted in the amended form: Com. v. Barrett, 304 Pa. 13,155 A. 95; Shaaber v. Reading, 133 Pa. 643, 647, 19 A. 419; Thomasv. Hinkle, 126 Pa. 478, 17 A. 670; Linsky v. Luzerne County,101 Pa. Super. 42; Harvey v. Hazleton, 81 Pa. Super. 1; Endlich, Interpretation of Statutes 397, section 294; 59 C. J. 1096, section 647.

In the light of that rule we examine sections 6 and 26 of the Wills Act as changed in 1935. We shall quote section 6 as originally passed indicating by italics the portions of it that were omitted by the amendment. "No estate, real or personal, shall be bequeathed or devised to any body politic, or to any person in trust for religious or charitable uses, except the same be done by will attested by two credible, and, at thetime, disinterested witnesses, at least thirty days before the decease of the testator; and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, heirs or next of kin, according to law. Adisinterested witness, within the meaning of this section, is awitness not interested in such religious or charitable use, —this section not being intended to apply to a witnessinterested in some other devise or bequest in the sameinstrument." As amended, attesting witnesses were no longer required. The second section of the amending Act of July 2, 1935, provided that the change in the law should "become effective immediately upon its final enactment."

Section 26 of the Wills Act of 1917, P. L. 403, 412, is as follows: "This act shall take effect on the thirty-first day of December, one thousand nine hundred and seventeen, and shall apply to the wills of all persons dying on or after said day. As to the wills of all persons dying before that day, the existing laws shall remain in full force and effect." The section provides for two things: first, an effective date for all the provisions of the act; second, that it shall apply to the wills of all persons dying after it shall come into operation. If, therefore, the first provision is changed as to any subject matter with which the amendment deals, the whole act is changed in that respect, but as the amendment made no change in the second provision, it remains the law as originally drawn and applies to the wills of all persons dying after the effective date of the act as amended. There is no difficulty so to apply the act; if a testator died between 1917 and July 2, 1935, the act applies as it was prior to amendment; if he dies after July 2, 1935, his will is still subject to all the provisions of the act except as the amendment changed section 6, which then became part of the Wills Act. This is a necessary effect of the rule of statutory construction stated above.

Notwithstanding the ambulatory character of a will it was long held¹ that the validity of the will, or of a devise or bequest contained in it, must be determined as of the time it was made. Some of the hardships resulting from the application of that rule were corrected by the Wills Act of 1833; among them,² for example, that a will may dispose of after-acquired property. Section 18 of that Act, 1833, P. L. 249, provided that it should "take effect from and after the first day of October next . . ." without however specifying, as section 26 does, and the difference is important, that it should apply to the wills of persons dying thereafter. Other enlargements of the power of testators were made by subsequent acts,³ among them, the Act of April 11, 1848, P. L. 536, section 7 et seq., and the Act of June 8, 1893, P. L. 344, section 5, but neither of these contained any provision making them apply to wills that came into operation after the statute went into effect.

In a supplement to the Wills Act of 1833, passed June 4, 1879, P. L. 88, a change in legislative policy appeared; section 4 of this supplement provided "This act shall operate upon and go into effect as to the wills of all persons who shall die after the date of the act." The difference, if any, between section 4 of that act and section 26 of the Wills Act is in the difference in effect of the words "This act shall operate upon" and the words "This act . . . shall apply to" the wills of persons dying after the act became effective. InAubert's Appeal, 109 Pa. 447, 1 A. 336, the question was whether a will made in 1876 which made no reference to a general power of appointment (created by another's will admitted to probate in 1873) executed the power. This court held that the words of sections 3 and 4 applied to the will made in 1876 because testatrix died after the Act of 1879 went into effect. The court said: "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." In Penna. Co. for Ins. on L. G. A. Account,264 Pa. 433, 107 A. 840, the same act was applied and it was held that a will made in 1890 executed a general power of appointment not created until 1908.

Section 26, which provides that it "shall apply to the wills of all persons dying on or after" its effective date, means the same thing as section 4 of the Act of 1879. Applying the rule that the amendment of July 2, 1935, must be read as if originally part of the Act of 1917, or as if that act had been reënacted in 1935 using the language of the amendment doing away with attesting witnesses, we still have remaining in the amended act (because not changed by the amendment) that it shall apply to the wills of all persons dying on or after the effective date. Unless this construction is adopted we should be attributing to the legislature an intention which is not expressed, that in addition to eliminating the necessity of subscribing witnesses the amendment by implication repealed that part of section 26 stating that the Wills Act should apply to the wills of persons dying after it became effective. There is nothing to support the idea of implied repeal. We think that the words have, and were intended to have, a retroactive effect⁴ to the extent indicated.

It is not without interest to observe that a statute with similar language came up for construction in In re Bridger,Brompton Hospital for Consumption v. Lewis [1893] 1 Ch. 44, affirmed on appeal [1894] 1 Ch. 297, and followed since. Bridger's will was dated June 29, 1891; after a life estate, he gave his property "In trust to pay such part of my said residuary trust estate which may by law be given for charitable purposes unto the Brompton Hospital for Consumption, and as to the rest and remainder of the said residuary trust estate upon trust for Elizabeth Williams absolutely." At that time only personalty could be given for such charitable use. Testator died February 20, 1892. In the meantime on August 5, 1891, a statute was passed which increased the kinds of property which could be left to such charity, which, if applied to the will, would carry the entire residue to the hospital and leave nothing for the residuary legatee, Williams. The effect of section 9 of the statute⁵ providing "This act shall only apply to the will of a testator dying after the passing of this act" was the point for decision. In the Court of Appeal, LINDLEY, L. J., after referring to section 24 of the English Wills Act (apparently similar to section 9 of our Wills Act⁶ requiring that every will shall be construed with reference to the property comprised in it and 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) said that "This section, however, does not by itself quite cover this case, for, although it enables a testator to dispose of property which he has not got when he makes his will, the section does not of itself enlarge his power of disposing of what he then has. This power, however, is, I think, conferred by sec. 9 of theMortmain and Charitable Uses Act, 1891. That section is so worded as to shew that the Legislature intended that the act should apply to wills made before this date, provided they came into operation afterwards. Combining this section with sec. 24 of the Wills Act, the result appears to me to be that, if a testator devises or bequeaths to a charity all the property which he can by law so devise or bequeath, the charity will take whatever property answers this description at the testator's death, and not only that which answered the description when he made his will. Such a devise or bequest would, I apprehend, clearly include property which a testator acquired a right to dispose of under a general power conferred upon him after he made his will.⁷ An extension, whether by a statute or otherwise, of a testator's power of disposition in the interval between the making of his will and of his death does not alter the meaning of his language, although such extension will necessarily enlarge the legal effect of that language by making it apply to more objects than it previously would have applied to." Also compare Langley v.Langley, 18 R.I. 618, 30 A. 465.

We must therefore conclude that while the bequest to the Woman's Hospital would have been void, had section 6 not been amended, the legislature had the power, no rights having vested prior to the death of the testatrix, to enlarge the power of disposition by the testatrix of property owned by her at her death and to eliminate the formality of attesting witnesses.

A question of the identity of the Woman's Hospital as legatee was made in the court below but not formally passed on because the bequest was held invalid.⁸

The decree is reversed but instead of making an award to the Woman's Hospital we must remit the record to enable the court to pass on the question left undetermined. Costs of appeal shall be paid out of the fund for distribution.

¹ See cases collected in Gable's Executors v. Daub, 40 Pa. 217.

² Many others are noted in the Report of the Commission that drew the act.

³ See Kurtz v. Saylor, 20 Pa. 205; as to the Act of 1887, P. L. 332, see Packer v. Packer, 179 Pa. 580, 36 A. 344.

⁴ It may be noted that the Orphans' Court of Allegheny County came to the same conclusion in Perry's Estate, 67 Pittsburgh Legal Journal 216, in dealing with a will executed by a mark apparently within the provisions of section 1 of the Act of January 27, 1848, P. L. 16, but not within the superseding provisions of sections 2 and 3 of the Wills Act of 1917, the will having been made in 1914 and testatrix having died in 1918.

⁵ Quoted [1893] 1 Ch. 45.

⁶ Miller's Estate, 323 Pa. 9, 15, 186 A. 99.

⁷ Agreeing with Aubert's Appeal, 109 Pa. 447, 1 A. 336, andPenna. Co. for Ins. on L. G. A. Account, 264 Pa. 433,107 A. 840, cited above, construing our Act of 1879.

⁸ On this subject the learned auditing judge said: "The second question presented in the petition for distribution need not be considered in view of my finding that the Woman's Hospital does not take. The question presented is that the identity of the Woman's Hospital named as legatee should be established if the bequests are valid, as there are several hospitals in the city of Philadelphia of a similar name. It may be stated, however, from the testimony presented at the audit, and the surrounding circumstances of the decedent immediately prior to her death, that she did intend the Woman's Hospital, represented by Mr. Ledwith, but as above recited, this now becomes unimportant."