Walker v. Hyland

The opinion of the court was delivered by Fort, J. The' facts are sufficiently stated at the head- of this opinion. Under the case certified to this court by the Court of Chancery, there is but a single question of law for our determination, namely: Does an after-born child of a married woman dying testate succeed, under the provisions of section 21 of “An act concerning wills,” approved April 15th, 1846, to the same portion of her mother’s estate as such child would have been entitled to had her mother died intestate? Since 1852, a married woman in this state may make a will, devising her real estate in the same manner as she might if she were unmarried. Pamph. L. 1852, p. 407. The last expression of legislative purpose upon this subject was made in 1864. Pamph. L., p. 698. The act of 1852, as amended in 1864, as found in the revision of 1874, reads as follows: “That any will or testament hereafter made in due form of law by any married woman above the age of twenty-one years of any real or personal property shall be held to- be as valid and effectual in law as if she were, at the time of making said will, and at the time of her death, an unmarried woman; provided, always, that nothing herein contained shall be so construed as to authorize any married woman to dispose, by will or testament, of any interest or estate in real property to which her husband would be, at her death, entitled by law; but such interest Or estate shall remain and vest in the husband in the same manner as if such will had not been made.” Gen. Slat., p. 2014, § 9. — 77 — The twenty-first section of the act concerning wills of 1846 reads as follows: “That if a testator, having a child or children born at the time of making and publishing such last will and testament, shall, at his death, leave a child or children born after the making and publishing of his- said last will and testament, or any descendant or descendants of such after-born child or children, the child or children so after-born, or their descendant or descendants, respectively, if neither provided for by settlement nor disinherited by the said testator, shall succeed to the same portion of the father’s estate as such child or children or descendants as aforesaid would have been entitled to if the father had died intestate; towards raising of which portion or portions, the devisees or legatees or their representatives shall contribute proportionably out of the part devised and bequeathed to them by the same will and testament.” Gen. Siat., p. 3760, § 19. The counsel for the defendant, in the second point in his brief, contends that the construction to- be given .to- this section of the act concerning wills is “that the statute, by its terms, is necessarily confined to the case of a married ‘man’ and a ‘father,’ and this intentionally so, for at the time it was passed no-married woman could make a will.” It is true that the act empowering a married woman to make a will, to devise real estate (subject to her husband’s estate by the curtesy), was enacted after the passage of the act concerning wills, and it is equally true that the words employed in section 21 of the act concerning wills, as to the persons to whom it applies, are “testator” and “father.” When a married woman was given the right to make a will, it must, to be valid, conform to- the act concerning wills. That proposition certainly cannot be controverted. If it can be, then there is no power, notwithstanding the Married Woman’s act releases her from her common law disability, for a married woman to legally execute a will. The method for the execution o-f a will was provided for by the act of 1851, before the act was passed removing a married woman’s disability to make a will. The act of 1851 was a supplement — 78 — to the act of 1846. It was never questioned, between 1852, when the act was passed, permitting a married woman to make a will, and the re-enactment of the act of 1851, by the revision of 1874, that the provisions of the act of 1851 concerning wills, applied to the execution of a will by a married woman. Yet, section 1 of the act of 1851 uses the word “testator” only. But it is clear that the word “testator” applies to “testatrix,” irrespective of our act concerning statutes, because “testatrix,” as Webster defines it, means “a female testator.” We should have no hesitation in construing “testator” to include “testatrix” if we possessed no act for the construction of statutes. An after-enacted, statute, which is amendatory of or which confers power under or removes a restriction imposed by an existing statute, is to be read into or to be deemed to be enlarged or restricted by or to confer the powers of such existing statute, where such a result is a necessary incident to and a natural corollary of the legislation under construction. Statutes must be construed reasonably, that they may be given their self-evident legislative intent. When the legislature conferred the powers upon a married woman to make a will and failed to provide any specific method therefor, that necessarily carried with it the right to execute the instrument and devise property thereunder as other persons might lawfully do. The right to devise property was also subject to the limitations imposed upon other natural persons in making such a devise. Nor do we see any force in the contention that because section 21 of the act uses the word “father,” that for that reason an after-born child of the “mother,” dying testate, would not succeed to any portion of the mother's estate. Speaking for myself alone, if I were compelled to determine this case upon the words of the twenty-first section of the act concerning' mils only, I should feel it was a matter of construction (not of legislation, as the defendants contend) to hold that, since 1852, the word “father,” in this statute, must be given no more force than “testator” or “testatrix,” and that — 79 — it applied to either. The section of the act concerning wills here under consideration is a mere re-enactment, as it appears in the act Of 1846. Neither prior to nor at the time when the act of 1846 was re-enacted had a married woman power to malm a will, except of personal chattels, with the consent of her husband. Van Winkle v. Schoonmaker, 2 McCart. 384. Section 21 of the act of 1846 embraced by its terms all the persons to whom it could then apply. When the legislature, in 1852, made it apply to a wife as well as a husband, and a mother as well as a father — that is, to a “married woman” as well as to a “married man” — they necessarily placed the power of the married woman to devise by will, subject to the provisions of the act under which the instrument of devise could be made, and restricted the power to devise to that contained in that act — the act under which she had previously been prohibited from devising at all. Because, if the Married Woman’s act of 1852, which empowered a married woman to make a will, did anything, it simply removed the inhibition contained in section 3 of the act concerning wills, which was “that the wills or testaments made, or to be made, of any lands, tenements or hereditaments, or any .estate pur auler vie by any married woman covert * * * shall not be held or taken to be good or effectual in law.” Gen. Stat., p. 3758, § 3. , With that section gone and the power given to a married woman to make a will, she took that power subject to all the limitations contained in the act, as to other testators similarly situated, and with the further limitation contained' in the proviso to section 9 of the Married Woman’s act as to her husband’s estate by curtesy: But if the construction just suggested cannot be sustained, still we all agree that the word “father,” as used in the twenty-first section of the act concerning wills, should be held to apply to “mother” by virtue of the ninth section of “An act relative to statutes,” approved March 27th, 1874. Gen. Stat., p. 3195, § 33. ■ Section 9 reads as follows: “That whenever, in describing — 80 — or referring to any- person, party, matter or thing, any word importing the singular number or masculine gender is used in any statute, the same shall be understood to include, and shall apply to several persons and parties, as well as one person or party, and females as well as males, and bodies corporate as well as individuals, and several matters and things as well as one matter or thing, unless it be otherwise provided, or there be something in the subject or context repugnant to such construction.” This section is as forceful in the construction of pre-existing as after-enacted legislation. It is in pañ materia with every statute of the state. The title of the act clearly indicates its purpose. It is, -in effect, an amendment of every existing statute. It is to be deemed a part of every act passed subsequently to it. It is, by express words, made applicable to every statute, unless in the act “it be otherwise provided or there be something in the subject or context repugnant to such construction.” It declares that the masculine gender, when “used in any statute,” shall include “females as well as males.” It cannot be said that “father,” as used in the twenty-first section of the act concerning wills, does not relate to males, and if that be conceded, how can it be said that “mother,” which relates to females, is not embraced in the statute? We have not, in reaching this result, overlooked the decision of the Court of Appeals of New York, cited on the argument in Cotheal v. Coiheal, 40 N. Y. 405. No reasons were given for the statement that the New York act relative to statutes had no application to the ease. In that case it may not have been deemed necessary to apply it. In any event, the decision does not conform, in our judgment, to the evident reason and spirit of our act relative to statutes. The result here reached is consonant with justice. To have reached any other conclusion would have compelled us to do violence, not only to the law, but to our natural instinct of humanity. The Court of Chancery is advised that, under the law, the — 81 — child, Annie Gluck Hyland, is the owner of the lands and’ premises described in the complainant’s bill, irrespective of the provisions of the last will and testament of her mother, Annie Gluck Hyland, deceased, subject to the estate by the curtesy of Michael E. Hyland, the husband of the said deceased.