Blackbourn v. Tucker

• Decision Date: 03 June 1895
• Citation: 17 So. 737,72 Miss. 735
• Court: Mississippi Supreme Court
• Parties: SALLIE BLACKBOURN v. B. A. TUCKER ET AL

17 So. 737

72 Miss. 735

SALLIE BLACKBOURN v. B. A. TUCKER ET AL

Supreme Court of Mississippi

June 3, 1895

FROM the chancery court of Tate county, HON. B. T. KIMBROUGH Chancellor.

The case is stated in the opinion.

Decree reversed and cause remanded.

W. J East, for appellant.

The validity of the dispositions in the will must depend upon the law as it was when the will took effect by the death of the testator. 8 Paige, 304; 4 Hill, 138; Schouler on Wills, 10; 1 Redfield on Wills, 359; 3 Pom. Eq. Jur., § 1162; 1 Jarman on Wills, 290; 39 Ohio St. 596. Appellant's contention is that, under §§ 269, 270, constitution 1890, no person or body politic can become a trustee of a bounty for the purpose of being given or devoted to charitable uses. This is clearly true of § 270. The two sections should be construed together as being in pari materia. 23 Am. & Eng. Enc. L., 332. And, thus construed they make invalid the gift both of the realty and personalty.

Mayes &amp Harris, on the same side.

The sections in question were incorporated in 1890, for the first time, into our organic law. This action by the constitutional convention declared a settled and inflexible public policy and the adjudications of the court upon these statutes must be in furtherance of that policy--for the suppression of the mischief and the advancement of the remedy.

These sections apply, notwithstanding the will was executed before the constitution was adopted. To so apply them is not giving them a retrospective operation. Both sections relate to devises "contained in any last will and testament, or codicil.''

The dispositions here involved were contained in a will at the time the constitution was adopted, and the language of the sections literally and exactly apply. A strict and hair-splitting analysis of the sections would rather exclude application to wills thereafter executed, because there were no express words in the statutes looking to the future. However, we do not believe such to be the meaning of the constitution. Its true construction is, that from the first day of November, 1890, any will which should become effective by the death of the testator, and which should contain a bequest of the character announced, should be null and void. The contrary construction is based upon certain authorities drawn from England and from the state of Pennsylvania. Without discussing these in detail, it will be seen that they were based upon a question of the application of the English statute of 9 George II., ch. 36. The language of that statute is this: That "from and after the twenty-fourth day of June, 1736, no manors, etc., shall be given, granted, aliened, etc., or . . in anyways conveyed or settled to or upon any person," etc. The English courts, in their adjudications, were avowedly hostile to the statute, and held that, because of its language, it was not applicable to wills already executed. The provision in our statute is, not that no bequests shall be made, but that no bequests "contained in,'' etc., shall be valid. The English decisions proceed on the idea that a devise is an appointment of particular lands to a particular devisee. Cowper's Rep., 90. The Pennsylvania decisions relied on by appellees, on close examination, would seem to be authority for appellant. See Price v. Taylor, 28 Pa. 95; Criley v. Chamberlain, 50 Ib., 106; Miller v. Porter, 53 Ib., 292; 57 Ib., 209; 74 Ib., 69; 100 Ib., 607; 106 Ib., 635. The general rule undoubtedly is, that a will does not take effect, nor are any rights acquired under it, until the death of the testator. 37 N.H. 295; 8 Paige, 295; 4 Hill; 138; 12 Metcalfe, 169; Ib., 262; 72 Ind. 235; 3 McCord (S. C.), 471; 4 Ib., 39; 26 Ala. 535; 3 Jones L. (N. C.), 77.

That a school is a charity is well settled. Vidal v. Garrard, 2 How. (U.S.), 127; 24 Ib., 465; 107 U.S. 163; 94 Mo. 459; 53 Penn., 292.

The proposition that, under § 269 of the constitution, the will is void as to the lands, needs no argument. It is contended, however, that § 270 does not apply, because the Senatobia Educational Association is not a religious or ecclesiastical corporation. We admit that it is not such, but we contend that while the view of this subject contended for is plausible, it is, in fact, unsound, and, looking to the spirit and purpose of the provisions, and construing the two sections together, the result is in fact that § 270 does whet the preceding section does, with some minor differences, that is to say, it prohibits religious devises, and also prohibits charitable devises. A liberal interpretation must be placed upon each section in order to further, not to restrict, the intent of the constitution. It may be urged that the use of the word "either," in the fifth line of § 270, excludes such a reading as we contend for. We recognize the plausibility of this position, but we say that the word ''either'' is referable, for its subsequent, to the "or" which immediately follows it in the same clause, not the "or" in the second or succeeding clause; in other words, that the reading is properly "to any religious denomination for either its own use or (its own) benefit," etc. Simply to transpose the two contiguous words "either" and "for," clears up the matter and makes it vastly more effective and sensible.

N. A. Taylor, for appellees.

The English mortmain statutes were never a part of the common law of this country. 24 How. (U.S.), 499; 1 Jarman on Wills, 242; 2 Merivale, 143. The briefs of associate counsel demonstrate that this statute has been uniformly construed as not applying to wills executed before the death of the testator. I submit that our constitution does not prohibit gifts of the character here involved. It seems, then, on well-settled principles, that the interpretation of the statutes does not admit of such construction. If so, we have, without the same necessity therefor, a more extreme and radical statute of mortmain than any of its English prototypes, for certainly there is not now the same necessity based on public policy for so radical a prohibition. Even in the midst of the famous contest by the Catholic church striving for religious intrenchment on English soil, the parliament, in the very birth of the statute, in the time of George II., made an exception in favor of education, and it was extended in favor of education afterwards. 1 Jarman on Wills, 221, 241; 6 Jacob's Fisher's Digest, 9300. The proper rule of construction requires, that the legislative provision on this subject should be considered in the light of the history of the law, and the necessity for its enactment. 3 Am. & Eng. Enc. L., 366; 1 Smed. & M., 100. Under the first section, it is obvious that it is religious or ecclesiastical control that kills the devise, whether it be for religious or charitable purposes. The words "religious or ecclesiastical" modify the other person or body in the section devises to which are forbidden, and are to be understood as preceding the words "person or body politic." This harmonizes with the next section, which omits the words "to any person or body politic," but which prohibits devises to religious or ecclesiastical corporations or associations, either for religious, ecclesiastical, or charitable purposes. Another construction nearly the same, and the same in effect, can be given both sections--namely, that the charitable uses or purposes forbidden in both sections are only those of a religious or quasi religious character.

It is surely not against the policy of our. state for such an educational association to exist; otherwise, why was it chartered by the state? There certainly can be no objection to the method of the acquisition in this case by will. The statutes were designed to prohibit the making of devises in one's last hours, induced by religious influences, in this case, there was no religious influence, and it is shown that the will was executed years before the testator's death.

Ira D. Oglesby, on the same side.

The English statute of mortmain has never been regarded as in force, in the absence of legislation, in any of the states except Pennsylvania. As that state considered the English statute in force, its decisions are entitled to more weight than those of other courts, where the points in issue are only incidentally involved. It is fair to presume that our constitutional convention, in adopting § 269, had in view the construction that had been placed upon the English statute, especially as to whether it should be construed as prospective or retroactive. Constitutional provisions, like statutory enactments, are usually construed to operate prospectively only. 139 U.S. 643; Sedg. Con. Laws & Stat 188; Cooley on Con. Lim., 76; Sutherland on Star. Con., 473; 10 Smed. & M., 601; 39 Miss. 363; 24 Ib., 379; 40 Ib., 252; 57 Pa. 212; 82 Am. Dec., 696; 41 Ib., 274. It is a settled general rule, except where changed by statute, that, as to devises of land, a will speaks as of the time of its execution, instead of the time of the death of the testator. This distinction is emphasized in Schouler on Wills, § 11; 16 How. (U.S.), 275; 15 Conn. 275; 9 Ired., 288; 40 Pa. 217; 5 W. & S., 198. The decisions holding that no rights are acquired under a will until the death of the testator will be found almost invariably to be based upon statutes similar to that of act 1 Vic., 26, which expressly so provides, except in cases where a contrary intention appears by the will. The case of Carroll v. Carroll, 16 How., 275, cites with approval 9 Ired., 288, which holds that a will is not affected by laws passed subsequently to its execution. A critical examination of that case and others like it will show that the courts hold that the statutes discussed show on their face a legislative intent that they shall have a...