Warfield v. Fox

• Decision Date: 28 January 1867
• Citation: 53 Pa. 382
• Parties: Warfield <I>versus</I> Fox.
• Court: Pennsylvania Supreme Court

53 Pa. 382

Warfield versus Fox.

Supreme Court of Pennsylvania.

January 28, 1867.

ERROR to the Court of Common Pleas of Greene county.

Sayers & Downey, for plaintiffs in error, cited Marple v. Myers, 2 Jones 122; Weddle v. Robertson, 6 Watts 486; Kenyon v. Stewart, 8 Wright 179; Miller v. Franciscus, 4 Id. 339.

Black, Wyly & Buchanan, for defendants in error, cited Kenyon v. Stewart, 8 Wright 179; Crow v. Kightlinger, 1 Casey 343; McDowell v. Potter, 8 Barr 189.

The opinion of the court was delivered, January 28th 1867, by STRONG, J.

The single question is, whether the 7th section of the Act of April 22d 1856, entitled "An act for the greater certainty of title, and more secure enjoyment of real estate," bars the plaintiffs against contesting the will of Abraham Stewart deceased. The will was admitted to probate by the register, on the 13th of July 1843. All the plaintiffs claim as heirs at law of the decedent, either as children or grandchildren. At the time of the probate, Hannah Warfield, one of the children, was a minor, about nine years of age. She attained her majority in 1855. Mrs. Ferrel, another child, was a feme covert at the date of the probate. She became discovert in 1851 and died in 1864, leaving children, who are some of the plaintiffs. This ejectment was brought in 1864, more than eight years after the passage of the Act of 1856. The plaintiffs insist that, notwithstanding the 7th section of that act, they are not concluded by the probate of the will, because Hannah Warfield was at the time under the disability of infancy, and Mrs. Ferrel was under that of coverture, and they claim that the proviso to the Act of March 26th 1785 enabled them to contest the probate at any time within ten years after the disabilities ceased, and this though they were under no disability when the Act of 1856 became a law. This position, however, is untenable. The 7th section of the Act of 1856 applies to all persons. It includes those who are under disabilities as well as those who are not. It makes no exception in favor of minors and those who are femes covert. Why then should the proviso to the Act of 1785 be incorporated into it? The Act of 1856 does not purport to be a supplement to the old statute of limitations, and the two acts are not on that account to be construed as one. Nor do they relate to the same subject-matter, if the 1st section of the later act be excepted, and the plain purpose of that section was to impose narrower limits to rights of entry than those that had been allowed. The Act of 1856 had many purposes, all included, it is true, in the general one to give greater security to the enjoyment of real estate, but each section has a distinct subject. The 7th aims only to give finality to probates of wills under which real estate is held. The 2d section of the Act of 1785, and the provisoes to it contained in the 3d and 4th sections, relate exclusively to entries upon lands held adversely, or actions to recover lands thus held. The provisoes are extensions of the limitations previously imposed upon entries or actions, and their subject-matter no more resembles that of the 7th section of the Act of 1856, than it does that of acts limiting the lien of judgments or decedents' debts, and prescribing within what time a scire facias must be sued out to continue them. If infants, femes covert and persons non compotes mentis are relieved from the operation of the Act of 1856, for the same reason they must be held not bound by the other class of acts. It is said the provisoes of the Act of 1785 were not repealed by the Act of 1856, that they were only modified by the 1st section. But what of that? Surely it does not follow that their operation is extended, and made to embrace a thing not within the act to which they were made exceptions. It is still to be considered whether the legislature has made them a part of the new act, and has engrafted them upon the 7th section. Directly they have not, and it is impossible to read the whole act without seeing that there is no necessary connection between its different sections. By no rule of construction, therefore, is the one to be considered as enlarged or restrained by the others. Moreover, it is a just inference from the structure of the 7th section itself, that no other exception from its operation was intended than the one expressed. It embraces every will devising real estate, limiting the right to contest a probate to five years, with a saving that all persons who would be sooner bound by it should not be barred for two years from its date. The legislature then had in view the subject of exceptions from the generality of the enactment, and if infants and femes covert were intended to be excepted, it is incomprehensible that the exception was not expressly made. A saving from the operation of statutes for disabilities must be...