Opinion
(December Term, 1859.)
The act of 1844 (sec. 119, chap. 6, Rev. Code) declaring as of what time a will shall speak was Held to give no force to the subsequently passed act in regard to the increase of slaves (Rev. Code, chap. 119, sec. 27), so as to pass the increase of slaves under a will made before this latter act was passed, although the testator died after it went into effect.
PETITION to rehear this cause, which was decided at December Term, 1858 ( 57 N.C. 281).
Strong and Dortch for plaintiffs.
Miller, Lewis, and Fowle for defendants.
The petitioners point out as erroneous that part of the decree which passed at the said term, in which it was declared that the increase of the slaves bequeathed to them in the third, fourth, and fifth clauses of the will of Thomas Williamson, which were born during the life of the said Thomas, did not pass to the petitioners, but fell under the residuary clause. They urge that it appears that Thomas Williamson died on 23 October, 1856, and that by sec. 6, chap. 119, Revised Code, it was declared that "Every will shall be construed with reference to the real and personal estate comprised therein, to speak and take effect as if (143) it had been executed immediately before the death of the testator, unless a contrary intention shall appear by will"; and by section 27 of the same chapter, it is declared that "A bequest of a slave, with her increase, shall be construed to include all her children born before the testator's death, unless a contrary intention appear by the will."
They urge that the said will was signed and published on 26 August, 1852, and that there is nothing on the face of it that forbids it being construed as if it had been executed on 23 October, 1856, which was after the said section 27 went into effect.
When this case was before us twelve months ago ( 57 N.C. 281), the effect which it has been since supposed that the act of 1844, chap. 88, sec. 3 (Rev. Code, chap. 119, sec. 6), ought to have had upon the construction of the will mentioned in the pleadings was not brought to our attention in the arguments then submitted. We have on that account been gratified that the cause has been presented to us again upon a petition to rehear it, and that the question which was omitted to be raised on the former occasion has now been fully and ably argued by the counsel on both sides. Aided by the light which has been thrown upon the subject by these arguments, we think that we can show conclusively that the act of 1844 above referred to has no bearing upon this point in the case, and that, consequently, the former decision must stand.
The act of 1844, chap. 88, sec. 3, declared that "every will shall be construed with reference to the real and personal estate comprised therein, 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." This act was held, in the case of Battle v. Speight, 31 N.C. 288, and again in Williams v. Davis, 34 N.C. 21, to (144) be prospective only in its operation, and not to affect the construction of any will made prior to the time when it went into effect, though the testator may have died afterwards. The reason given for the decision in the case first above mentioned was that the Legislature could not have intended to change the meaning and legal effect which the language of the will bore at the time of its inception. Hence the conclusion was that the act was intended to apply only to wills thereafter to be executed or published. Upon such after-made or published wills, it was manifest that the act of 1844 could not alter the rule of construction which had prevailed before ( Love v. Love, 40 N.C. 201, and other cases); that in a bequest of a negro woman and her increase without any explanatory words, the legatee could not take a child of the woman born after the date of the will and before the testator's death. Indeed the act would seem to make the application of the rule clearer, because the will, speaking and taking effect immediately before the death of the testator, could not embrace any increase of a female slave born before that time.
Such being the operation of the act of 1844, if it have any operation upon the case at all, the counsel for the petitioners to rehear are necessarily forced to rely for the support of the construction for which they contend altogether upon the effect of the act contained in sec. 27, chap. 119, Rev. Code, which says that "a bequest of a slave, with her increase, shall be construed to include all her children born before the testator's death, unless a contrary intention appear by the will. Now, it will be seen that upon the first hearing of this cause we did consider the question of the effect of this enactment, and decided that it could not apply to the construction of the will under consideration, because it was made and published before the act went into operation. It is obvious that we could not have decided otherwise without a direct violation of the principle adopted by the Court in Battle v. Speight and reasserted in Williams v. Davis, to which we have heretofore referred. That principle is that a statute which purports to change a rule of construction (145) then applicable to devises and bequests will not affect wills made before the time of its enactment, though the devisor or testator may not have died until afterwards.
PER CURIAM. Petition dismissed.
Cited: Rogers v. Brickhouse, post, 304; Radford v. Elmore, 84 N.C. 426.