Wynne's Lessee v. Wynne

• Decision Date: 31 December 1852
• Citation: 32 Tenn. 405
• Parties: WYNNE'S LESSEE et al. v. WYNNE.
• Court: Tennessee Supreme Court

32 Tenn. 405

WYNNE'S LESSEE et al.

v.WYNNE.

Supreme Court of Tennessee.

December Term, 1852.

This was an action of ejectment commenced in the circuit court of Davidson county. At the September term, 1851, Maney, judge, presiding, there was judgment for the defendant; and the plaintiffs appealed in error.

Meigs and Stokes for plaintiffs in error; Trimble, F. B. Fogg, Caruthers, and E. H. Ewing, for defendant in error.

Houston, Special J., delivered the opinion of the court.

This is an action of ejectment for two pieces of land in Davidson county, near the city of Nashville. The lessors of the plaintiff claim the land as the heirs at law of Albert H. Wynne, deceased, being his nephews and nieces; and the defendant, his widow, claims the land as devisee under his will. The will bears date the 3d of October, 1830, and the testator died in June, 1849. After his death the will was found among his valuable papers, all in his own handwriting, signed by him, but unattested by witnesses. He had been married to his wife many years, and had no children. At the date of the will he had a large personal estate and but little real estate. He purchased the property in controversy after the year, 1830, together with a large property real in Mississippi. The property sued for is the late residence of the testator, and a lot adjoining it or near to it, and is worth $8,000 or $10,000. The will is in few words, and, after providing for the payment of his debts, by the first clause, he declares:

“Item 2d.--I give to my much-beloved wife, Micha Wynne, all the balance of my property, both real and personal, to have and to hold to her own benefit, to the exclusion of all others.”

He then appoints his wife sole executrix, unless she should wish some other person to join her, expressing a wish that no security be required of her, unless some other person should join her.

Several questions have been raised in the argument and elaborately discussed, but from the view we have taken of the case we deem it unnecessary to notice all the questions raised. The 1st section of the act of 1842, ch. 169, prescribes the mode of descent, where any person shall die intestate, and having no issue or brothers or sisters, or issue of brothers or sisters. The 2d section provides that when an estate is vested by descent it shall not be divested by the birth of a child, unless such child shall be born within ten callendar months next after the death of the intestate.

The 3d section provides that when any person to whom any estate shall be devised shall die before the death of the testator, leaving issue living at the testator's death, such devise shall not lapse, but shall vest in the issue of the deceased devisee.

The 4th section of the act is in these words: “That any estate, right, or interest in lands acquired by a testator, after making of his will, and of which he died seized or possessed as aforesaid, shall pass thereby in like manner as if owned by him at the making of the will, if such clearly appear by the will to have been the testator's intention.”

The first question raised is, Doth this 4th section apply to wills made before its passage, when the testator lived until after its passage? In other words, does it apply to the will of Albert H. Wynne? It is well known that before the passage of this act, land acquired after the making of a will did not pass thereby in this state, however clear the intention of the testator might be that it should so pass. The reason of this rule was that a devise is in the nature of a conveyance or an appointment of a particular estate; and therefore lands purchased after the execution of the will did not pass by it. 4 Kent, 510.

This was a stern and inflexible rule, in many cases operating hardly, by wholly defeating the clear and unequivocally-expressed wish of the testator; and the object of the statute was to abolish this harsh rule, and to permit testators to pass all their real estate by will, as well future acquisitions as lands then owned, if such appeared to be the intention, placing the devise of real estate on a footing, as nigh as might be, with a will of personalty, to pass according to the apparent intent of the testator.

There is nothing, in the language of the act, restricting its operation to wills made after its passage. On the contrary, the terms of the act are general, and broad enough, it seems to us, to apply to all estates in lands acquired as well after as before the execution of the will. “Any estate, right, or interest in lands acquired by a testator, after making of his will and of which he died seized or possessed, as aforesaid, shall pass thereby,” etc. This is comprehensive, without a restriction, or seeming restriction, as to the date of the will. And the 5th section of the act would seem to strengthen this view of the question. It provides “that nothing herein contained shall be so construed as to operate upon, or affect in any manner, or apply to, the estate of any person or persons whatsoever who have died previous to the passage of this act.” By excluding in such express terms, from the operation of the act, the estate of persons who have died before its passage, the section very strongly indicates the intention of the Legislature to include, in the 4th section, the estates of all persons who are living at the date of the passage of the act; and we are of opinion that such was the intention of the Legislature, and that the 4th section does apply to Albert H. Wynne's will, and to the property in controversy. And we are the better satisfied with this view of the question by the fact that this act has received the same construction by the courts of Massachusetts. The 4th section of our act is identical with the act of Massachusetts upon the same subject, excepting the word “manifestly,” which appears in the Massachusetts act and not in ours. That act has been construed by the supreme judicial court of Massachusetts to apply to wills made before its passage, as well as to wills made afterwards. Cushing et al. v. Aylwin, 12 Metc. 169; Pray v. Waterston, 12 Id. 262.

It is true that the act of North Carolina, upon this subject, has received a different construction by the supreme court of that state. But it does not appear that the act of North Carolina contains any such provision as that contained in the 5th section of our act. And, moreover, the terms of the North Carolina act, as the court there says, clearly make it operate prospectively only. They are, “that it shall be lawful for any testator,” etc., and “that the power hereby given shall extend,” etc. Battle v. Speight, 9 Ired. 288.

2. But it is further insisted that if the act of 1842, ch. 169, sec. 4, in terms applies to wills made before its passage, and the Legislature intended that it should so operate, it is inoperative and void because in direct conflict with our Declaration of Rights, art. 1, sec. 20; which declares “that no retrospective law or law impairing the obligation of contracts, shall be made.” If this is true, then of course there is an end of the question, so far as the act of 1842 is concerned. It is true that, taking the provision in its literal terms, the act of 1842, and all other legislation having in view past transactions of whatever nature or character, would be in conflict with it. But taking it in its limited and restricted signification, as defined by our courts of justice, and there are many cases of retrospective legislation that are not prohibited. But is the act of 1842 one of the cases not prohibited by it? This section of the Bill of Rights has been so often directly and indirectly before the courts, and has received such a uniform legal construction, that we do not feel authorized, were we so inclined, to depart from it.

We understand that construction to be that...