Blackbourn v. Tucker

Cooper, C. J., delivered the opinion of the court. By his will, made on the seventeeth day of August, 1887, A. L. Blackboiirn, after some small bequests to his wife, the appellant, devised and bequeathed the remainder of his estate, real and personal, to the Senatobia Educational Association, to be by said association applied “ in maintaining and keeping in a prosperous condition that institution of learning owned by said association, and known as the Blackbourn College for Girls, in Senatobia, Miss., or in both maintaining said college and erecting such additional and suitable buildings to said college as their — 743 — judgment may dictate, having always -in view the best interest-of said institution.” Blackbourn died on the first day of November, A.D. 1893, and his will was presented for probate-by Tucker, his executor, on the fourth day of said month. The appellant exhibited her bill in the chancery court of Tate-county, in which county the testator had resided and in which the will was probated, challenging the validity of the devise of the land and the bequest of the personal estate to the Senatobia Educational Association, on the ground that said dispositions of his estate by the testator were rendered void by §§ 269, 270 of the constitution of the state. These sections are as follows : “Sec. 269. Every devise or bequest of lands, tenements or’ hereditaments, or any interest therein, of freehold or less than freehold, either present or future, vested or contingent, or of any money directed to be raised by the sale thereof, contained in any last will and testament, or codicil or other testamentary writing, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, and the heir at law shall take the same property so devised or bequeathed, as though no testamentary disposition had been made. “Sec. 270. Every legacy, gift or bequest of money or personal property, or of any interest, benefit or use therein, either direct, implied or otherwise, contained in any last will and testament, or codicil, in favor of any religious or ecclesiastical corporation, solo or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association, either for its own use or benefit, or for the purpose of being given or appropriated to charitable uses, shall be null and void, — 744 — and the distributee shall take the same as though no such testamentary disposition had been made. ’ ’ The constitution became operative on November 1, 1890. The chancellor was of opinion that, since the will was executed before the adoption of the constitution, it was not controlled by the sections of the constitution above set out, although the testator died after they became of force, and, entertaining this view, sustained a demurrer to and dismissed the bill. This ruling of the chancellor presents the question principally argued by counsel, but, as will hereafter appear, the question of the construction of the constitutional provisions, if applicable in the present controversy, is also presented. Counsel for appellee, in an exceedingly able and learned brief, contend that to apply the constitution to wills executed before its adoption, is to give it a retroactive operation, to annul a valid and lawful disposition of property, and, while they concede the competency of such legislation, either by statute or by constitutional provision, they contend that the presumption is against such having been the intention of the framers of the constitution, there being in the instrument no provision that it should have a retroactive operation. It is urged by them that our constitutional provisions are, in effect and purpose, the same as the English statute of mortmain. 9 George II., ch. 36. And since, they say, the English statute had uniformly been held by the courts of England, and by those of Pennsylvania, in which state alone it is in force, to apply only to wills executed after its passage, it should be assumed that the framers of the constitution intended, in adopting our provisions against mortmain, to adopt also the construction which had been given to its prototype. It would unnecessarily protract this opinion to enter into a full discussion of the authorities cited by counsel for the respective parties, nor is it necessary to affirm that, in the construction of the act of George II., the English courts were prolonging the controversy that had so long existed between parliament and the ecclesiastics, who formerly presided in chan745 eery. The language of the English act, that £Cno lands or tenements, or money to be laid out therein, shall be given or charged, ’ ’ etc., is quite different from that of our provision, which condemns the dispositions forbidden when ‘‘ contained in any last will or testament, or codicil or other testamentary writing. ’5 At the time of the adoption of the English statute, after-acquired lands could not pass by devise, which was considered in the nature of a conveyance or appointment of an estate then owned, or to which the devisor was beneficially entitled. 1 Jarman on Wills, ch. 4. What influence, if any, this fact had upon the English courts, and.whether the fact that with us a different statutory rule prevails would lead to a different constructions of the same statute, need not be considered. The ¡Drovisions are not the same. The rule of construction invoked by counsel for appellees, that when a statute of another state which has received judicial construction is adopted, the presumption is that its construction is also accepted, is met by the opposing rule that a change in the words of a prior statute is an indication that the lawmakers intended a different, and not the same, construction to be thereafter adopted. Rich v. Keyser, 54 Pa. St., 86; Endlich on Inter, of Stat., § 382. But these rules of construction aré not of very great value in determining the question involved, because the very nature and character of the constitutional provisions impel us to the conclusion that they apply to all devises becoming operative by the death of the devisor after their adoption. An examination of the cases cited by counsel for the respective parties will show them to have been decided under statutes of three distinct classes: First, statutes limiting or denying testamentary power, as the statutes of mortmain; second, statutes affording a rule of construction for discovering the intent of the testator; third, statutes regulating the execution and publication of wills. When the purpose is of discovering whether the legislative will was that the statute should' operate what is sometimes not accurately called retroactively, it is manifest that the question is largely controlled by the very — 746 — nature of the act. We are now dealing with a question falling within the first of the classes of cases as just noted. The statute of 1 Vict., ch. 26, may be taken as illustrating the second class. As a rule, before this statute, when a testator referred to an actually existing state of things, his language was deemed to be referred to the date of the will, and not to his death. Jarman on Wills, vol. 1, p. 288. The act of parliament provided ‘c that every will shall be construed, with reference to the real 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. ’ ’ Now, if the rule of construction provided by this statute, which had for its purpose the discovery of the intent of the testator, had been applied to wills theretofore executed, the probability is, that the testator would have been made by the law to mean one thing, when, in Jaruth, he meant another. This would be testing a past transaction by a future rule, and, since the whole purpose of the act was to supply a rule of construction to discover the intention of the testator as disclosed by his words, it is evident that to have applied the statute to a will made at a time when the same words under the then existing law meant directly the opposite, would have resulted in giving a different meaning to his words than that meant by the testator. But, even as applied to such statutes, diametrically opposite rules have been adopted. Carroll v. Carroll, 16 How. (U. S.), 275; Mullock v. Souder, 5 Watts & S., 198 ; Brewster v. McCall, 15 Conn., 274; Battle v. Speight, 9 Ired. (N. C.), 288. Contrra: Cushing v. Aylwin, 12 Metc., 109 ; Pray v. Waterston, Ib., 264; Brimmer v. Sohier, 1 Cush. (Mass.), 118. There is conflict in the authorities as to whether statutes regulating the execution and publication of wills are applicable to wills executed and published before their enactment, as will be seen by reference to the cases cited by counsel for appellant. But the rule undoubtedly is, that a statute will be construed to operate on past transactions — especially where no vested rights — 747 — are affected — if it is necessary thus to apply it in order to effectuate the scheme and purpose of the legislature. An act declared that a person ‘' convicted of felony ’ ’ should forever be disqualified from selling spirits by retail. It was held that one convicted before the passage of the act was disqualified, as the object of the law was to protect the public from having beerhouses kept by men of bad character. Hitchcock v. Way, 6 A. & E., 947; Ex parte Guttierez, 45 Cal., 430; Endlich on Inter. of Stat., 284. The constitutional provisions have no relation to the intention of the testator, nor do they regulate the manner in which he may make and publish his will. The question is, not what was his will, but it is, what is the will of the people of the state ? Manifestly, the purpose of the constitution is to prevent one who will not be charitable at his own expense from being so at the expense of his heir at law. One may yet ' ' sell all that he hath, and give to the poor, ’ ’ but he may not keep his grip on his estate until death relaxes his grasp, and then, at the expense of wife and child, devote it to religious uses. Why should one who, before the adoption of the constitution had executed a will over which his dominion remained absolute, stand in any different relation to his family or the public than one who had not ? The prohibition is against the thing to be done, and not against the processes by which it is done. The limitation is upon testamentary power, and, if it is unjust or retroactive to apply its terms to one who had made a will, why does not the same objection lie in favor of all the people who, at the time of the adoption of the constitution, had the testamentary capacity to then make wills ? The provisions certainly, in one sense, take away a pre-existing power, but it was one existing as much in every citizen then having testamentary capacity as in Blackbourn, who had executed a paper which in no sense bound him, or conferred any right upon the persons named therein as legatees. We can see no reason why the prohibition should not operate against Blackbourn’s right to retain his estate dur — 748 — ing his life, and then disinherit his heirs by devoting it to religious and charitable purposes, which would not also restrain it as against all others who, before the adoption of the constitution, had the power so to do. We are of opinion that the will is subject to the operation of the constitution. The remaining question is, to what extent is the will annulled by the constitution? It will be noted that, while in § 269 the prohibition is against devises to religious or ecclesiastical corporations, denominations, societies or associations of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination or association, or for the purpose of being given or appropriated to charitable uses or purposes, § 270 contains no prohibition against bequests of personal property to ‘‘any person or body politic, in trust for the purpose of its being applied to charitable uses or purposes.” Section 269 deals with devises of lands, or bequests of money to be raised by the sale thereof ; § 270 with bequests of money or personal property generally. We are at a loss to conjecture why the subjects of lands, or money to be raised by the sale thereof, have been dealt with in one section of the constitution, and devises or bequests thereof to ‘ ‘ any person or body politic, for the purpose of being given or appropriated to charitable uses or purposes, ” has been prohibited, while bequests of money or personalty'generally is separately controlled by § 270, in which such bequests are not prohibited. That a distinction between the two classes of property was intended is made manifest by the fact that they are separately provided for in distinct sections, and by the use of carefully selected words, which are not susceptible of receiving the samé construction. In § 269 devises of land, or of money to be raised by the sale thereof, to persons or bodies politic, to be applied to charitable uses, are prohibited; in § 270 bequests of money or personal property to such persons or bodies politic for charitable — 749 — uses are not forbidden. We have sought in vain for some principle upon which the two sections might be brought into .harmonious reading by construction, but we are constrained to recognize the fact that the subjects are controlled by divergent words too clear to admit of the same construction. We are, therefore, of opinion that, while under §269 of the constitution the "devise of the lands by the testator is annulled, the bequest of the personal estate is valid, because not prohibited by § 270. Section 269 of the constitution was article 65, and § 270 was article 56, of ch. 35 of the code of 1857. These articles were dropped from the code of 1880, and were replaced as the above sections of the constitution of 1890. In Bostic v. Elliott, ms. op., relied on by counsel for appellant, the bequest was, we think, upheld under article 56 (§ 270 of the present constitution). The figures, 55, as written in the opinion, should have been 56. Unless this was the article under which the bequest was upheld, the decision is erroneous. The decree is reversed, the demurrer overruled and the cause remanded. Whitfield, J., dubitatur as to the bequest of personalty.