Opinion
(June Term, 1844.)
Our act of Assembly of 1840, ch. 62, enacting "that no will in writing, made after 4 July, 1841, whereby personal property is bequeathed, shall be sufficient to convey or give the same, unless such will be executed with the same formalities as are required in the execution of wills of real estate." etc., does not apply to wills of personal property signed and published before 4 July, 1841, though the testator may not have died until after that period.
APPEAL from Nash, J., at Spring Term, 1844, of BLADEN.
W. Winslow and D. Reid for plaintiffs.
Strange for defendant.
Devisavit vel non, as to the will of William Salter, dec'd. The instrument, purporting to be a will, was dated 6 July, 1838, when it was signed and published by the testator and attested by one witness. The testator died in the fall of 1843.
The jury, under the charge of the court, found it to be a good will for personal estate, and the defendant appealed to the Supreme Court, on the ground of misdirection by the court.
The Legislature, in its session of 1840-41, passed an act that no will in writing, made after 4 July, 1841, whereby personal estate is bequeathed, shall be sufficient to convey or give the same, unless such will be executed with the same formalities, as are required in the execution of wills of real estate. William Salter had published the paper-writing, offered in evidence by the plaintiffs, as his (495) will on 6 July, 1838, and he died in the fall of 1843. The said paperwriting has all the formalities of a will to pass land, except that it is subscribed only by one witness. It is true that a will to be good must be made according to the form prescribed by the law at the time of the death of the testator, and not from those at the time of its execution. And the case of Elcock's will, cited by the defendant's counsel, (4 McCord, 39,) is an authority for this position. There it appears, that Elcock made his will of personal property in 1823, which was attested by only two witnesses, according to the provisions of the law in force at that time. By the statute of 1824, (of S.C.) it is required that wills of personal property shall be attested by three witnesses, which repeals the former act. The testator died in 1825, leaving no other will. It was held that the will was void as not being in conformity to the law of the State, at the death of the testator. But it will be observed that there is nothing in the South Carolina statute that is like unto a proviso, reservation or exception for a will made before a particular time; and it, therefore, overrides every paper-writing in the nature of a will, made before its enactment, which is not in conformity to its provisions, and the testator died after it went into force. But our act of Assembly impliedly excepts all wills in writing that were made before 4 July, 1841. In other words, the law relating to such wills as were made before that time was not to be considered as repealed by the said statute. That brings us to the question, what did the Legislature mean by the said word ("made,") as it is used in the statute? The rules of exposition as to grants and pleadings, to wit, that the words used are to be taken most strongly against the grantor or pleader, are rules that have no place in the construction of acts of Parliament, which are not the words of parties. The words in the last will of a party are to be most favorably construed, because he is inops concilii. This we cannot say of the (496) Legislature, observed Lord Tenterden, 9 Barn. C., 758. But the construction of a statute depends upon the apparent intention of the makers; to be collected either from the particular provision or the general context, and should be construed according to the intention of the makers. Dwarris, 688. The Legislature, (in 1840-41,) were about to make a great alteration in the law of this State relative to the disposition by will of personal property; and they did not intend, that any of the people should be surprised by it; and therefore, they did not say that the act should go into effect on the 4th day of July, 1841, but they said that no will in writing of personal property made after that time, should be sufficient. Can it reasonably be contended that the Legislature meant (by using the word "made,") an instrument then complete, and to take effect as a will by the death of the testator? We think not, because then the present phraseology of the act would have been useless. A simple declaration that the act should not go into operation before 4 July, 1841, would have much better expressed their meaning. The word "made," we think, was intended to embrace those instruments of writing which were executed and published as wills according to the forms and ceremonies of the law; for when that was done the will was then made, although it could not take effect until the death of the testator. And, we think, that any instrument of writing, thus made, before 4 July, 1841, although the testator died after that time, was intended by the Legislature to be governed by the former law; or that the former law was not intended to be repealed as to such a will, and was still the law as to the subject matter, at the death of the testator, although that might be after 4 July, 1841. The judgment must be affirmed.
PER CURIAM. Judgment affirmed.
(497)