Appeal of Carl

Mr. Justice Green delivered the opinion of the court, Wo agree entirely with the learned judge of the court below in his view of this case. In point of fact the testatrix executed her will more than three years before her death. It was that will which gave the charity to the appellee. The codicil diminished the amount of the charity, but that which passes to the legatee does so by force of the will only. While it is true that for certain purposes, and in legal contemplation, a will speaks from the death of the testator, that consideration does not in the least degree affect the physical fact of execution. The prohibition contained in the Act of April 26,1855, [642] relates to the physical fact alone. It would produce a manifest anomaly to hold otherwise. These are its words: “No estáte, 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 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:” Bright. Purd., 1477, pl. 22. It will be seen at once that the act of signing and attesting is the fact which must transpire more than one month before the other fact, to wit, the death of the testator, occurs. Between these two facts an interval of time, one month, must elapse. Moreover, the prohibition is applicable both to deeds and wills. They are in the same category, and are mentioned in the same sentence. But it would be an astonishing proposition to advance if the instrument creating the charity were a deed executed more than three years prior to the grantor’s death, that it was void by force of this statute. The fault of the opposing argument lies in confounding a legal fiction with a physical fact. Of course, all wills must speak as of the time of the testator’s death. It is a pure legal fiction that they were executed at that time. The fact of actual execution remains, and is entirely unaffected by the fiction. Wherever the factum is material, of its own force, in determining legal results, it will be treated as of the date of its actual occurrence. This would be eminently so in a question of sanity of the testator. If he were of perfect mental soundness at the time of execution, the validity of his testament would not be destroyed by a condition of insanity at the time of his death, which might not occur until years after. We do not think it necessary to enlarge upon the subject. The authorities cited by the appellants are not in point. They do not reach the question involved in this case. If the theory of the appellants were true, no charity could be given by will written and executed in the ordinary manner, as such a bequest would necessarily be avoided by the fiction that wills are efficacious only as of the time of the testator’s death. There is no merit in the other point, made but not pressed in argument, that the appellee is a foreign corporation. Decree affirmed.