Greenough v. Greenough

Decision Date17 September 1849
Citation11 Pa. 489
CourtPennsylvania Supreme Court
PartiesJOHN GREENOUGH <I>v.</I> THOMAS GREENOUGH.

Dunlop v. Dunlop, 10 W. 193; Cavett's Appeal, 8 W. & S. 26; Asay v. Hoover, 5 Barr, 21; Grabill v. Barr, 5 Barr, 441. The only substitute for a name written by the testator himself, is his name written by some one at his request, which request must be proved by two witnesses. We have not that substitute here, so Elizabeth Greenough died intestate, and her real estate descended eo instanti, and vested in her brothers and sisters.

2. The execution of this paper not being valid under the act of 1833, is it aided by the act of 1848? The testatrix here did not make a cross or mark; it was the act of the scrivener, who used her hand without any authority. She did not acknowledge that mark after it was made.

Had the plaintiff a vested interest in the land in controversy, on the day of the passage of the act of 1848?

The act of 8th April, 1833, is explicit: "if not disposed of by will, the estate shall descend and vest," and that took place here. The plaintiff acquired an immediate fixed right of present enjoyment upon the death of his sister — a vested interest. Can the legislature destroy that, or transfer it to another?

Brown v. Hummell, 6 Barr, 87; Austin v. The Trustees, 1 Y 260; Green v. Drinker, 7 W. & S. 440; Norman v. Heist, 5 W. & S. 171; Menges v. Wertman, 1 Barr, 223; Society for Prop. the Gospel v. New Haven, 8 Wheaton, 464; Tate v. Stoolfoos, 16 S. & R. 38; Jackson ex dem. v. Lyon, 9 Cowen, 664; Rogers v. Smith, 4 Barr, 98; Bolton et al. v. Johns, et al.; Dale v. Medcalf, MS. opinion of Burnside, J.

Howard and Forward, contrà.—1. Is the will good under the act of 1833? We have proved compliance with every requisition of that act, except that we cannot show her "express direction" to Lowrie to sign her name, by the two subscribing witnesses: one of them forgets it. Suppose that one had died before probate, would not the evidence of the living witness, and proof of the handwriting of the deceased one, be sufficient evidence of its execution? But the mark is a sufficient signature at common law; and when the name is written by another, any act, from which an acknowledgment may be inferred, such as making this mark, makes it valid binding on the party.

Stat. 7 Will. 4, re-enacted in 1 Victoria, cap. 26, §§ 9, 10, 12, are word for word like § 6 of our act of 1833. Mark is a good signing in England: 3 Har. Dig. 664. If witness forgets, the presumption is in favour of the due execution of the will: 5 Har. Dig. 591. One witness swears he saw testator sign, and the other forgets — it is sufficient: 3 Curt. Eccles. 54; 8 Jurist, 814; Burgoyne v. Shouler, 7 Jurist, 633.

Attestation of a devise by mark is good signing within statute of frauds: Addey v. Grix, 8 Ves. 504; 17 Ves. 450; Wright v. Wankford. A name printed and acknowledged, sufficient: 2 M. & S. 288; 14 Johns. 484; Vattel, p. 315, § 273; Ib. § 234.

A will, prepared for one, who from paralysis had lost the use of speech, and could not write, signed by a mark and duly attested, sufficient: 3 Curtis, 752, a case since 1 Victoria; Cavett's Appeal, &c. A will appearing to be truly executed, the presumption of law is in favour of its due execution, and if the witnesses are entirely forgetful of the transaction, the presumption is the same: 8 Jurist, 814; 5 Har. Dig. 598. The presumption here is, that the execution is at least primâ facie good. How could it be known whether the testatrix could or could not write without an adjudication? or that she did not write the name? or that it was or was not written at her request? If a judicial proceeding was necessary to ascertain these facts, then the will, under the act of 1833, was not void, but at most only voidable, and nothing vested in the heirsat-law and the will is made good by the act of 1848: Bradee v. Brownfield, 2 W. & S. 280. The probate relates back to the death of the testatrix, and makes the will primâ facie good, and no right could vest in the heirs until it is annulled.

Does the act of 1848 disturb vested rights? is it constitutional? The act is partly legislative, partly judicial: Bradee v. Brownfield; Hepburn v. Curts, 7 W. 301. Those cases are as strong as this. The plaintiff has no natural right to his sister's property; and what the legislature gave, before actual possession is taken, it may take away: Mercer v. Watson, 8 Peters, 110. An act is only void for violating an express contract. This court will not imply a contract: 3 Peters, 388. The parties' remedy is in the wisdom of the legislature: 11 Peters, 468.

A devisee takes as a purchaser. The contest here, then, is between a purchaser and a volunteer: the purchaser, at the worst, claiming under a title originally defective in its execution: Thomas v. Simpson, 3 Barr, 70. By statute, an inchoate right vests in heirs: Evan v. Montgomery, 4 W. & S. 218. Legislature may give or take away statutory remedies.

The legislature have not undertaken to deal with the making of wills, but only with the mode of execution and the evidence of them: Mercer v. Watson, 1 W. 357. Acts curing defects in acknowledgments of deeds have been held constitutional: 4 S. & R. 356.

8 Peters, 110; Satterlee v. Matthewson, 2 Peters, 380; same case, 13 S. & R. 133; Wilkinson v. Leland, 2 Peters, 653. Legislature may diminish salaries where they are fixed by law, and the appointment is for a definite number of years: Canal Com'rs. v. Commonwealth, Am. Law Journal, Aug. 1848, p. 79; 3 Peters, 288; 11 Peters, 468; 12 Ohio, 308; 13 Vermont, 582; 19 Pick. 48.

As to vested rights, Menges v. Wertman, 1 Barr, 218. The presence or absence of a moral obligation seems to be the test. If the plaintiff here were a purchaser for value, with a defective conveyance, he might have a moral right to recover; but he is a volunteer claiming against a purchaser, and, though the execution of the will should be found defective, if cured by act of 1848, the defendant's case is as strong in equity as was that of the sheriff's vendee in Menges v. Wertman, and the plaintiff's case is not as strong as that of Menges' heirs, for he never had possession or any decision in his favour. We have been executing deeds according to this will — making valuable improvements — for nine years past, and the plaintiff never objected. This delay estops him.

The opinion of this court was delivered by GIBSON, C. J.

So far as regards wills consummated by the testator's death — and this is one of them — the act of 1848 is founded on no power known to the constitution, but on the assumption of a power appropriated exclusively to the judiciary. Every tyro or sciolist knows that it is the province of the legislature to enact, of the judiciary to expound, and of the executive to enforce. These functions may, if the people will it, be performed by a single organ; but the people of Pennsylvania have not so willed it. They have ordained that the judicial power of the Commonwealth be vested in a Supreme court, in County Courts of Common Pleas, Oyer and Terminer, and Quarter Sessions, in a Register's Court, and an Orphans' Court: and in such other courts as the legislature may from time to time establish. But the judicial power of the Commonwealth is its whole judicial power; and it is so distributed, that the legislature cannot exercise any part of it. Under the constitution, therefore, there is no mixed power — partly legislative and partly judicial — such as was recognised in Bradee v. Brownfield. Did it exist, it could be exercised only in concert or in common; for it would give the judiciary as much right to legislate as it would give the legislature right to adjudicate. Thus blended, I know of no constitutional power, principle, or provision, that would give to either of them, as a co-ordinate branch, an exclusive right to the whole. What then did the legislature propose by the statute of 1848? This court had ruled in Asay v. Hoover directly, and in Barr v. Strobell, Cavett's Appeal, and perhaps Hays v. Harden, incidentally, that a testator's mark to his name, at the foot of a testamentary paper, but without proof that the name was written by his express direction, is not the signature required by the act of 1833; and the legislature has declared, in order to overrule it, that "every last will and testament heretofore made, or hereafter to be made, except such as may have been finally adjudicated prior to the passage of this act, to which the testator's name is subscribed by his direction, or to which the testator has made his mark or cross, shall be deemed and taken to be valid." How this mandate to the courts, to establish a particular interpretation of a particular statute, can be taken for anything else than an exercise of judicial power in settling a question of interpretation, I know not. The judiciary had certainly recognised a legislative interpretation of a statute before it had itself acted, and consequently before a purchaser could be misled by its judgment; but he might have paid for a title on the unmistakeable meaning of plain words; and for the legislature subsequently to distort or pervert it, or to enact that white meant black, or that black meant white, would, in the same degree, be an exercise of arbitrary and unconstitutional power. All ex post facto laws are arbitrary; and it is to be regretted that the constitutional prohibition of them has been restricted to laws for penalties and punishments. In a moral or political aspect, an invasion of the right of property is as unjust as an invasion of the right of personal security. But retroactive legislation began and has been continued, because the judiciary has thought itself too weak to withstand; too...

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