Alter's Appeal

The opinion of the court was delivered, by Agnew, J. This is a hard case, but it seems to be without a remedy. An aged couple, husband and wife, having no lineal descendants, and each owning property, determined to make their wills in favor of each other, so that the survivor should have all they possessed. Their wills were drawn precisely alike, mutatis mutandis, and laid down on a table for execution. Each signed a paper, which was duly witnessed by three subscribing witnesses, and the papers were enclosed in separate envelopes, endorsed and sealed up. After the death of George A. Alter, the envelopes were opened and it was found that each had by mistake signed the will of the other. To remedy this error the legislature, by an Act approved the 23d day of February 1870, conferred authority upon the Register’s Court of this county to take proof of the mistake, and proceed as a court of chancery to reform the will of George A. Alter and decree accordingly. Proceedings were had resulting in a decision of the Register’s Court that there was no will, and that the act to reform it was invalid, the estate .having passed to and vested in the collateral line of kindred. From this decree an appeal has been taken by Catharine Alter. On this statement the first inquiry is, Was the paper signed by George A. Alter his will? Was it capable of being reformed by the Register’s Court ? The paper drawn up for his will was not a will in law, for it was not “signed by him at the end thereof,” as the Wills Act requires. The paper he signed was not his will, for it was drawn up for the will of his wife and gave the property to himself. It was insensible and absurd. It is clear, therefore, that he had executed no will, and there was nothing to be reformed. There was a mistake, it is true, but that mistake was the same as if he had signed a blank sheet of paper. He had written his name, but not to his will. He had never signed his will, and the signature where it was, was the same as if he had not written it at all. He therefore died intestate, and his property descended as at law. ^ The difficulty lies not in the want of power of a court of chancery to reform a mistake in an existing will, [345] when full equity power to that end is conferred hy the law, but in the want of power to give an existence to that which had none before. And the objection to the validity of the act conferring the authority to decree the will, lies not in a want of power in the' legislature to establish a will upon parol proof of the fact of making it, and of the intent to execute the proper paper, but in its want of power to divest estates already vested at law on the death of George A. Alter without a will. - There being no will, it is evident that the effect of any subsequent legislation, call it by what name we may, is simply to divest estates. That this cannot be done is abundantly proved by Greenough v. Greenough, 1 Jones 494; McCarty v. Hoffman, 11 Harris 508; Norman v. Heist, 5 W. & S. 171; Bolton v. Johns, 5 Barr 145; Dale v. Metcalf, 9 Id. 108, and other cases. The first two cases are directly in point, for it was held therein that the Act of Assembly validating wills where the testator had made his mark instead of signing his name or expressly directing it to be signed for him, could not reach the case of a will so executed, where the testator had died before the passing of the act. The decree of the Register’s Court is therefore affirmed, with costs to be paid by the appellant.