Johns v. Doe

Stewart, J., delivered the opinion of the Court. Richard Johns, by his will, duly made and executed the 13th of July, 1849, devised to his brother, John T. Johns, all the residue of his estate, real, personal or mixed. He acquired the property in dispute by deed of the 11th of June, 1867, and died in June, 1869. John T. Johns, under the will, claims the entire property as the residuary devisee of his brother, and the ejectment was ⁵²² brought in this case, against him, for an undivided third part, claimed by his sister, as one of his heirs-at-law, upon the ground that Richard Johns died intestate as to this property, and that it descended to his heirs-at-law.

By the law existing when this will was executed, the real estate acquired by the testator afterwards, was not controlled by the will, but descended to his heirs-at-law. The Act of 1849, chapter 229, changed the law in this respect, and after the 1st of June following, except where wills had been executed before this law, by persons dying prior to the 1st of June, 1850, they were to be construed with reference to real or personal estate, to take effect as if made on the day of the death of the testator, unless a, different intention was manifest from the will. The Court of Appeals of this State, and the Supreme Court of the United States, entertained different views as to the construction of this Act. See Magruder vs. Carroll, 4 Md., 355; Alexander vs. Worthington, 5 Md., 471 ; Wilson vs. Wilson, 6 Md., 487 ; Carroll vs. Carroll’s Lessee, 16 Howard, 275 .

It was held by this Court, that the provisions of the Act extended to all wills, except those excluded by the 2d section. Thus stood the law, as interpreted by this Court, when the 93d Article, section 309 of the Code, was adopted. It is maintained by the appellee, that this provision changed the rule of construction as to wills made before the 1st of June, 1850. This was the view of the Court below, the correctness of which we are required to determine in this case.

As the testator executed his will prior to the Act of 1849, and died after the 1st of June, 1850, the will is subject to the operation of the rule of construction, unless that rule has been modified.by the provision of the Code. There is no doubt, if Richard Johns had died before the enactment of this provision of the Code, and after the 1st of ⁵²³ June, 1850, under the decisions of this Court, the rule would be applicable to his will; but, as he survived, and acquired the property in dispute after the enactment of the Code, and the execution of his will, it must be interpreted by the legislation existing at the time of his death, when his will, before ambulatory, became operative. It appears that by reason of the 2d section of the Act of 1849, the Court of Appeals was induced to decide that the law applied to all wills, and not alone to those made after the 1st of June, 1850, when the rule of construction was to'be applied. The language of 93d Article, section 309, of the Code, is not precise nor full, but leaves much for construction.

It is apparent, whatever may be its interpretation, that from its prescribing the 1st of June, 1850, as the time from which it was to operate, that reference was had to the Act of 1849, by which the same time had been prescribed for its rule of construction to apply. This coincidence of dates, as to the same subject-matter, under all the circumstances, was not accidental. There is no doubt, in the construction of the Code, careful examination of the preexisting legislation, and the judicial construction thereon, is necessary. The Code was declared, by the law adopting it, to be a substitute for the whole body of the statute law, local and general, and it certainly has effected very material changes in the law of the State.

The Legislature designed to preserve all that was needful, and to discard what was obsolete or inapplicable, and relieve the statute-book from all useless matter. Whilst the Code superseded the preexisting laws, yet, in many cases, by comparing its provisions with the previous statutes in pari materia, a better opportunity may be afforded to ascertain what is the existing law as enacted by the Code. Where its lauguage is the same as that of any antecedent law, the well established construction, is to be regarded. ⁵²⁴ If the terms are substantially different, they must have their plain and obvious interpretation, and not be strained to conform to previous legislation. If the provision is doubtful, reference to the antecedent law may aid in determining its true intent and purpose.

Where the language is clear, there is- no occasion to resort to other aids in ascertaining the meaning. We take it, that the Code is to be understood and expounded, according to the law establishing it, as a substitute, and. such meaning must be given to the language employed, as a just construction will warrant. To apply our views to the case in question. Whilst the Act of 1849 has been l’epealed, and the provision in the Code substituted in its place, we can better ascertain the meaning and effect of the provision by an examination of the Act of 1849, with the judicial construction which has been given to it.

Assuming that the provision in the Code is substantially the same as the first section of the Act of 1849, without qualification by the terms of the second section, what is the fair interpretation to be given to the provision as it stands, having the previous judicial construction of the Act to aid us? The second section of the Act of 1849 had become obsolete, and, of course, there was no occasion for its incorporation into the Code, but as a judicial construction had been given to the first section, from a consideration of the terms of the second section, the omission of the second section in the Code, without the employment of plain terms importing as much as the second section, explanatory of the meaning of the provision, is a material circumstance, to be considered in construing the provision in the Code. Where the Code has left out the second section and substituted alone, in substance, the first section, without qualification, the judicial interpretation given to the Act of 1849, with all of its sections, cannot be applicable to the first section without the addition of the second section. ⁵²⁵ The Act of 1849 had provided that wills executed after 1st of June, 1850, should be construed to govern all the property comprised therein. The provision of the Code regarded this rule of construction as applicable at that period, and by its terms declared it should operate upon all wills executed after the 1st of June, 1850.

Thus the Act of 1849 and the provision of the Code would be uniform in this respect. The Court of Appeals had declared in the case of Magruder & Tuck vs. Carroll, et. al., 4 Md., 348 , “if the Act (1849) were constructed of the first section, we would not experience any difficulty in deciding that it was intended, and did, in fact, operate only on wills executed after the 1st of June, 1850; and this interpretation •would be in consonance with the well established principle that statutes are not to have a retroactive effect, unless it be perfectly obvious it was the intention of the Legislature. But the great difficulty arises out of the second section.” If we adopted the construction given to the first and second sections taken together, where the first section alone is re-enacted, we should do violence to the provision in the Code, and interpolate a meaning derived from the second section of the Act of 1849, not warranted by its language, and repugnant to the judicial exposition of the Act of 1849, without the second section. We should, in fact, judicially give force and effect to the Act of 1849, with all its sections, when the Code has simply but substantially incorporated but the first section, without qualification.

If the Code had designed to recognize and re-enact the law of 1849 as adjudicated by the Courts, distinct and plain language would have been used. The codifiers, and the Legislature adopting their Acts, must be presumed to have knowledge of the construction given to the Act of 1849, and certainly they could not have intended to leave so important a subject in a doubtful condition. They determined to disembarrass this first section of the Act of 1849 from all ambig ⁵²⁶ uity. This is a reasonable presumption, and we must construe the provision in the Code according to its own obvious purport.

(Decided 20th January, 1871.) From a fair construction of its language and from reference to the provisions of the Act of 1849, and the judicial interpretation thereof, it only operates over wills executed since the 1st of June, 1850. The will in question having been executed before, is beyond its reach and must be governed by-the law as it existed when the will was made, independent of this provision of the Code. The testator is presumed to be aware of the law existing and operating when his will was .made, and his will has the benefit of that law. By that law the property in dispute having been acquired after the making of the will in 1849, is not embraced by the will and does not vest in the residuary devisee, but descends as property of which the testator died intestate to his heirs-at-law.

The plaintiff below being entitled to an undivided third part, had the right to recover accordingly. Judgment affirmed. Bartol, C. J., delivered the following dissenting opinion, in which Grasor, J., concurred : The only question in this case is whether the lands in controversy passed under the will of Richard Johns to his residuary devisee, the appellant, or whether he died intestate thereof. The will was executed in due form of law to pass real estate on the 13th day of July, 1849; the land in dispute was acquired by the testator on the 11th day of June, 1867, and he died seized in fee thereof in June, 1869.

The intention of the testator to devise his whole estate is manifest on the face of the will; and under its provisions the property in question passed to the residuary devisee, unless by law it can operate only on land owned by the testator at the time it was made. ⁵²⁷ By the ancient and long established rule of law existing in Maryland at the date of the will, while such instruments were ambulatory as to personal property, and were in respect to such property construed as if made at the time of the testator’s death; with reference to real estate, they were construed as speaking only on the day of their date, and were incapable of passing lands subsequently acquired. By the operation of that rule the real intention of testators was often defeated; for it is well known that according to the common apprehension of mankind a will, being an instrument operating only after the testator’s death, might naturally be supposed to speak and take effect, as of that time, with reference to all property embraced in it as well real as personal. It was therefore reasonable for the Legislature to change the law, and establish a new rule more conformable to reason, whereby the real intention of testators might be carried out. Such a change had been made by Act of Parliament in England some years before; and had been introduced by legislation in several of our sister States.

Accordingly at December session, 1849, by chapter 229, passed on the 23d of February, 1850, it was enacted as follows : Sec. 1. “That every last will and testament executed in due form of laAv, after the first day of June next, shall be construed Avith reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will. Sec. 2. “ That the provisions of this Act shall not apply to any will executed before the passage of this Act, by any person Avho may die before the first day of June next, unless in such Avill the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death should thereby pass. Sec. 3. “ That this laAV shall take effect on the first day of June next.” ⁵²⁸ This Act came before the Court of Appeals for construction in Magruder & Tuck vs. Carroll, 4 Md., 335 . The will of Michael B. Carroll, then under consideration, had been executed in 1837, the testator died in August, 1851; and the question arose whether the will could operate to pass lands acquired by the testator after its date.

The Court decided unanimously that the will came within the operation of the first section of the Act of 1849 — and passed lands acquired subsequent to the date of its execution. The same question again came before the Court of Appeals in Alexander vs. Worthington, 5 Md., 471 . There the same will was under consideration, and the Supreme Court of the United States having given a different construction to the statute; the subject was very carefully and elaborately examined, and the former decision in Magruder & Tuck was adhered to and affirmed by the whole Court. Again the question arose in Wilson vs. Wilson, 6 Md.,