Girard v. Mayor of Philadelphia

The opinion of the court was delivered by Gibson, C. J. In the report of the judges on the statutes, nothing is said about the 32 and 34 Hen. 8. which are therefore to be taken as not in force here; but whether they were considered as having never been soror as supplanted by our statute of 1705, cannot be positively known. They were most probably thought to be repealed and supplied, as they were entirely within the rule laid down by Lord Holt in Blankard v. Galdy, 2 Salk. 411, and repeated by the Privy Council, as appears from the relation of the Master of Rolls in 2 P. Wms. 75; that an emigrant colony carries with it the laws of the parent to an uninhabited country; or even to one acquired by conquest, so far as regards matters in respect io which the existing laws are silent, or enjoin what is immoral, or are contrary to the religion of the conqueror. It is plain that a country whose entire population has been displaced to make room for the new comers, is an uninhabited country for the purpose of receiving their laws; and therefore it seems singular, that the distinguished judge who ruled Blankard v. Galdy, should shortly afterwards have held, in a case which involved the legality of slavery, that the laws of England did not extend to Virginia, being a conquered country; and the more so, as the laws of the aborigines, if they had any, could not be supposed to have provided for the subject. Be that as it may, our courts have always held that the laws which were in force at the foundation of the colony, and not positively unsuitable to the condition of the colonists, were brought by them hither; and it cannot be thought that laws which enabled them to dispose of real estate, were unsuitable. During the twenty-four years that elapsed between the charter and our statute, they could not have been without provision on the subject, and I know of none that was competent to satisfy their necessities but these very statutes ; for it will appear in the sequel, that the inter334 veiling legislation on the subject of wills, had regard to the proof of the instrument and not the power of the testator, with perhaps the single exception of the act to direct “ how the estate of any person shall be disposed of at his death,” passed the 10th of March,-1683. By that act, which may be seen in the Appendix to Hall Sellers’s . edition of the laws, page 9, it was provided: “ that whatsoever estate any person hath in this province or territories thereof, at the time of his death, unless it appear that an equal provision be made elsewhere, shall be thus disposed of; that is to say, one third to the wife of the party deceased, one third to the children equally, and the other third as he pleaseih; and in case his wife be deceased before him, two thirds shall go to the children equally, and the other third to he disposed of as he shall think fit, his debts being first paid.” In the margin we have these observations by Chief Justice Kinsey: “ 1. This act seems to restrain the power of devising more than one-third of the lands of which a man died seised. 2. This law, for aught I find to the contrary, continued till the first of the fourth month, 1693, when a law passed authorizing a man to devise all his real estate.” This repealing law I have been unable to find. But it is observable (hat the act of 1683, included land, if at all, only by force of the word ‘ estate’ and not of any more specific term: so that it is by no means clear that the inclination of Judge Kinsey’s opinion, for he spoke doubtingly, accorded with the true construction or actual understanding of the times. He could not have known by experience the construction put on the act in practice, for his notes were written probably forty years after the repeal of it; and if he had been a member of the profession during that period, he was not till, 1730, an inhabitant of Pennsylvania. Granting his opinion to be that land 0was included, it is pretty evident the crown thought otherwise; for judging from the jealousy evinced by it in the case of much less important innovations, it is scarcely to be believed, that it would have tolerated for ten years so violent an infraction of the spirit of the charter, which required a conformity of the laws to those of the mother country, as a restriction of the power of devising to a third of the testator’s land, or the dower of his widow to be turned to a fee. But if it were even applicable to land, still it was viewed by the chief justice but as a restraining statute, not an enabling one; and this plainly shows what, in his opinion, was the law before. It was therefore to remove a doubt of the interpretation, or to repeal the law taking the interpretation of the chief justice to have been established —in any event to restore the law to its former footing — that the act of which he speaks, was passed in 1693. Of the legislation which took place in relation to proof of the instrument, I shall have occasion to speak in the sequel. It seems pretty clear, then, that the English statutes of wills were originally in force with us, and not reported as being so still, only because the judges thought that our own statute was designed to supersede them in their whole extent. Judging of the substitute by its provisions, it might perhaps as naturally have [335] been deemed but ancillary to them, as performing the same office in regard to them here, by exacting in addition to their requirements the observance of particular solemnities as matter of proof, that is performed by the statute of frauds in England. But even as an enabling statute, our act of 1705 was not a new law, but an act of legislation on the basis of an old one, which is therefore to be taken into consideration in the interpretation of inexplicit clauses, because it is reasonable to presume that no departure from the existing law was intended, further than is expressed. For this reason it is, perhaps, that the act has always been understood by the profession, in accordance with the British statutes. Had a variance been suspected, it must long ago have been put to the test of judicial decision ; but no trace of such suspicion is to be found in our judicial records. It is argued, that whatever the general rule may be, the clauses in the codicils of this will, which require real estate acquired subsequently, to pass as if it were then the estate of the testator, make the case an exception to it; and the question therefore is notone of intention, but of power. But even in the case of a general residuary devise, the intention to pass the estate is taken for granted; and what is there in the specific expression of such an intention here, but a greater degree of certainty in respect to what is in other cases taken for granted ? Nothing in the books but the dictum in Brett v. Rigden, Plowd. 344, gives colour of authority to the supposed distinction. There it is said to have been determined in the 39 H. 6, 18, that if a man devise a certain estate, and have nothing in it at the time, but purchase it afterwards, it shall pass; because, as it is said, it must be taken that his intent was to purchase it, and were it not to pass, the will would be void. All this was repudiated by Lord Holt in Bunker v. Cook, 11 Mod. 278, (S. C. Fitzg. 225,) as being not even the dictum of a judge, but an assertion of counsel, and unwarranted by the book cited for it; in which he is supported by Chief Justice Trevor, in Arthur v. Bokenham, 11 Mod. 163. (S. C. Fitzg. 233.) In truth the matter never depended on the actual intent; nor yet, as it was at one time supposed, on the restrictive words of the English statutes, and it is therefore of no importance to the question, that those statutes were not reported as in force here. It is true that in Butler dp Baker’s Case, Lord Coke laid great stress on those words; but in Bunker v. Cook, or Broncker v. Coke, as it is reported in Holt’s Rep. 247, it was asserted by Lord Holt, that Chief Justice Bridgman had differed from Lord Coke in attaching importance to them, in a case determined in the Common Pleas, the 16 Car. 2, and that the judges in the exchequer chamber were of the same opinion: this too on the relation of Chief Justice Bridgman himself. But what puts the matter at rest is, that in this case of Bunker v. Cook, the rule was applied in all its rigour to lands which were devisable, not by force of the statute at all, but by custom; and the judgment was affirmed in the House of Lords. The doctrine was vigorously maintained in that case, as well as in Buckenham v. Cook, [336] Holt’s Rep. 248, by Lord Holt ; and in Arthur v. Bokenham, by Chief Justice Trevor, who together rested it on these propositions: That a will is a species of conveyance, not strictly subject to the rules of conveyances at the common law it is true, the vesting of the estate being postponed till the death of the testator; yet operating, as regards his disposing power and capacity, by relation to the making of it, insomuch as to require his power over the estate to be perfect at the time, just as his capacity must be perfect at the time, it being settled that the want of a disposing mind and memory at the performance of the act of disposition, is not supplied by the restoration of it before the death, for the same reason that an intervening loss of it will not prejudice a disposition unexceptionable at the time — in other words, that the act of disposition must be complete in' every respect at the performance of it: That a testator, like any other grantor, cannot give what he has not; and that the same principle prevails in conveyances to uses, though construed liberally like wills, to favour the intention, as in Yelverton v. Yelverton, Cro. Elk. 401, where a father, covenanted to stand seised of land which' he should purchase : That the form of pleading a devise, the testator always being described as seised at the time of making his will, is strong though not conclusive evidence of the necessity that he should be so in fact: That the reason why land differs in this respect from personal estate, is that the common law has provided in the event of- intestacy, a fixed successor to the one and not to the other, even the statute of distribution being but a direction to the executor how to administer the assets; by reason of which, and the fluctuating nature of personal estate, which is changing every day, a different rule would require a new will to be made every day: That a subsequent purchase giving the land to the testator, is repugnant to the import of the devise, which would give it to the devisee; and therefore not to be intended to have been made in subservience to the object of the will: And finally, that there is no case or authority to warrantthe opposite doctrine. To the argumént of such men as these, it would be presumptuous in me to attempt an addition, and I therefore refer the student to their reasons as stated in the report. The alleged dependence, then, of the doctrine on the restrictive words of the British statutes being disposed of, it results that the question stands here exactly as it did in England, unless the specific provisions of our own statute be thought to make a difference. The clause which has been supposed to make this difference, is in the first section. After requiring proof by two witnesses, and establishing a mode for its authentication, it is declared that wills so proved, shall be good and available in law for the granting, conveying, and assuring, of the lands or hereditaments thereby given or devised, as well as of the goods and chattels thereby bequeathed;’ and from the parity of provision thus expressed, is inferred an intention to create a parity of operation and effect. That such was not the object, seems manifest from the legislation which preceded it. By [337] the fifteenth law agreed upon in England, it was declared, that ‘ all wills and writings attested by two witnesses, shall be of the same force as to lands as other conveyances, being legally proved within forty days, either within or without the said province.’ This was evidently designed to preclude that provision of the statute of frauds w'hich requires three witnesses, and is worthy of special notice beside, not only for treating wills of lands as conveyances, but for putting them on the footing, as to proof, of testaments ofchattels, which by the canon, and consequently by the English law, require but two. Lea v. Libb, 3 Salk. 396. This fundamental law received a regular statutory form from the first assembly, convened at Upland, in 1682, by whom it was enacted as the forty-fifth section of the Great Law, and in the terms in which it had been expressed in England, with the exception of two immaterial words introduced, the last of them evidently by inadvertence. Chief Justice Kinsey’s note in the margin is: ‘ This act as amended in the fourth of Queen Anne, remains to this day.’ Prov. Laics, App. 7. Now, the fourth of Queen Anne, which he pronounces but an amendment, is the very act under consideration ,■ and it seems clear, therefore, that he considered the act of 1682, as the law of his day, except so far as it was amended by the act of 1705. His notes were written certainly after 1713, as they contain a reference to acts passed in the close of that year, and probably after 1730, when he removed from JVew Jersey to Pennsylvania. He was appointed chief justice about the year 1743, and died in that office, according to Proud, in 1750. The act of 1682, however, was amended only as to the time of proof, and the manner of authenticating it, the requisition of two witnesses being preserved. But this is not all. An act had been passed at New Castle, in 1700, {Append, to Prov. Laws, 7,) which expressly following the analogy of conveyances as to the effect of the instrument, required no more than legal proof without specifying the number of the witnesses. It therefore had, or might be supposed to have, the effect of putting wills of lands upon a lower footing as to proof than wills of chattels, about which it said nothing, and consequently left them on the footing of the general law. To say the least, it was open to an argument that one witness was sufficient for a will of land, as in the case of any other conveyance of land. This act having been repealed by the Queen in council, as may be seen in Weis fy Miller’s edition of the laws, page 18, our present act was passed in the same year, and the requisition of proof by two witnesses restored, with new provisions added, as to the mode of authenticating it; and thus the reduction in the quantity of proof made by the act of 1700, was taken away, and wills of land were again put, as to proof, on the footing of testaments of chattels. It is needless to ask why. It was an express condition of the charter, that thé laws for the regulation of property should conform, as nearly as might be, to the laws of England, till altered by the provincial legislature; and the same jealousy of innovation, which prompted the crown to repeal the act for the abolition of sur [338] vivorship between joint tenants, passed in 1700, as well as the two acts for barring entails by a deed acknowledged and recorded — the one passed in 1705, and the other in 1710, (HallSp Sellers’s edition of the laws, Append. 18, 19,) — might, on a question of further departure from the statute of frauds, induce it to stickle about a witness more or less. The clause in our statute of wills, to which I have particularly adverted, seems therefore to have reference to the proof, and not the effect of the instrument, or, at least, no further than the latter may be supposed to depend on the former. The first was all that was in contest between the province and the crown. The fifi teenth law agreed upon in England, or rather the act of 1682, remained in force twenty-three years without opposition ,• and during that time, wills of lands and testaments of chattels stood on the same footing. But no sooner did the act of 1700 reduce the proof of the former, or bring it into doubt, than it was repealed by the privy council; and when the present act of 1705 raised it again to the level of the act of 1682, the crown acquiesced. At no time does there appear to have been a disposition to change the effect of a will of lands as understood in England; indeed, the very suspicion that such a design was harboured, would have defeated it. On the contrary, the language of all our laws is incomparably more emphatic than that of any act of Parliament, to show that a will of lands was esteemed a conveyance and no more. In the very act before us, a will proved in the manner prescribed, is declared “ to be available in law for the granting, conveying, and assuring of the lands or hereditaments thereby given or devised” — words that are properly predicable only of conveyances of land by deed; and though they are used in the same clause as predicable of the transfer of chattels also, they are so used, as regards the incidents peculiar to each, reddendo singula singulis. This sketch of the legislation which preceded the act of 1705, and which is here given in the order, and nearly in the words of a distinguished counsel, to whose research I am indebted for it, seems to put the intention of the legislature beyond the reach of doubt. The magnitude of the interest in contest, amounting as it does in value to more than sixty thousand dollars, as well as a respect for the doubt suggested by my brother Huston, has induced me to examine the foundations of this part of our law with peculiar care; and the result is a firm conviction, that the real estate acquired subsequently to the two codicils, did not pass by Mr. Girard’s will: consequently, the plaintiffs are entitled to the succession under the intestate laws. Judgment for the plaintiffs.