Wilson v. Greer , 50 Okla. 387 ( 1915 )

After a careful consideration of the former opinion rendered herein, aided by the oral arguments and additional briefs filed on the petition for rehearing, we are satisfied that our former opinion was sound, and that the petition for rehearing must be denied. It cannot be seriously doubted that, at the time this will was executed, the testator had capacity to make the will, but under the laws of the United States he could not devise this particular property at that time, but as to all other property he had full power to dispose of it by will, and before his death the law was changed, so as to allow the testator to dispose of this property also by will.

In our opinion the will speaks from the death of the testator, and where he has testamentary capacity when the will was made, and it clearly appears from the will that he intended to dispose of all of his property, as in this case, the will speaks from the death of the testator, and passes all of the property that he was capable of disposing of by will at the time of his death. At the time of the testator's death the laws of Arkansas relating to wills were in force in the Indian Territory, where the testator died. In Patty v. Goolsby,51 Ark. 61, 9 S.W. 846, decided in 1888, it is said:

"While by the common law a will was generally construed to speak from the death of the testator as to personalty, it was not so as to real estate. For real estate to pass by will it was requisite that the testator should be seised at the time of making the will, and continue so seised to the time of his death, and it seems this rule was independent of any intention to convey such after-acquired property expressed in the will. The reason assigned was that a will was nothing more than a mode of conveying a particular estate, and the testator could not convey property of which he was not seised. * * * Considering the great changes in the policy, as well as the formalities in alienating and assuring title to real estate from what they were when the English rule on this subject originated and prevailed, we cannot see, notwithstanding the common law has never been changed by any positive statute, any reason why a will should not speak from the death of the testator as to real as well as to personal estate, and we are therefore of the opinion, and so hold, that, the said intestate being seised and possessed of the said lands at the time of his death, they were included in his will and were conveyed thereby."

In Hamilton v. Flinn, 21 Tex. 713, it appears that there was a law in Texas prohibiting parents from disinheriting their children without a just cause, or from disposing by will of more than one-fourth of their property. This law was repealed, but prior to its repeal the testatrix executed a will practically disinheriting one of her children, and died without a republication of the will after the law was repealed. The court held the will valid, and said:

"It is conceded that if the will, in the language of the books, speaks from the death of the testatrix, it is valid, although inofficious and defective at its date. As a general rule, a will has been regarded in this state as speaking from the death of the testator. That the instrument was not only his will, but his last words, and, as such, operated, where the language of the bequest was general, upon the whole property of the testator, without regard to the senseless distinction between legacies and devises, or that the latter had been held as extending only to such lands as the testator had at the execution of the will. * * * The objection to bringing the will of Mrs. Flinn within the influence of the act of 1856 is, in substance, that this would give the act a retrospective operation, and, if so, it would conflict with the Constitution. To determine upon the soundness of this position it will be necessary to have clear ideas of the meaning of the retrospectiveness or retroactivity of a law, and this is defined with great precision and fullness in Society forPropagation of Gospel v. Wheeler, 2 Gall. 105 [Fed. Cas. No. 13156], by Mr. Justice Story, to the effect that a statute which takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past is to be deemed retrospective or retroactive. * * * The test, then, of retroactivity, is not whether a hope, expectancy, or a mere inchoate right, but whether a vested right 'to possess certain things according to the laws of the land,' * * * is impaired or defeated."

And it is also decided in Loveren v. Kamprey, 22 Foster (N.H.) 434, that a new law changing the operation of a will is not retroactive, where the testator makes his will prior to the passage of the act, but dies thereafter. In this case it is also said:

"A will does not take effect, nor are there any rights acquired under it, until the death of the testator; and its construction is to depend upon the law as it then stands. A statute passed after the making of a will, but before the death of the testator, by which the common law is changed, will be operative upon the will. To give the statute such an effect is not to make it retrospective in its operation, since it affects no rights vested before its passage."

In Wilson v. Wilson, 6 Md. 487, the same question arose as in the case at bar, as to the effect of a statute passed after the will was made, and before the death of the testator. It is said:

"The sole question arising on this appeal is whether certain real estate acquired by Wm. T. Wilson after the execution of his will passed to his devisees, or descended to his heirs at law. * * * As the testator, in this case, executed his will in June, 1849, and died in June 1852, it follows that, according to the construction of the act of 1849, as established by this court, his after-acquired real estate must pass under the will, and not to the heirs at law. [Magruder v. Carroll] 4 Md. 335; [Alexander v. Worthington] 5 Md. 471."

In Cushing v. Aylwin, 12 Metc. (Mass.) 169, a will was executed prior to the passage of a statute allowing after-acquired lands to pass by will, and the testator died thereafter. In the opinion it is said:

"The question in this case is whether the title of Elizabeth Doane passed to the tenant by her last will and testament, or descended to her heirs at law. Her will was made prior to the Revised Statutes, and the land demanded was purchased by her afterwards. The demandants contend that Rev. Sts. c. 62, sec. 3, does not apply to a will previously made. But we think there is no sufficient reason for this limited construction of the statute. The object of the statute was to obviate an inflexible rule of the existing law, which had been found to operate injuriously, by defeating, not infrequently, the intention of the testator, however clearly expressed; and there seems to be no good reason why the provision should not apply as well as to wills made before as to those made after the statute, when the will had not taken effect, before that time, by the death of the testator. That the Legislature had the constitutional power to enact such a law is not to be denied; and we think that such was their intention."

In Re Kopmeier, 113 Wis. 233, 89 N.W. 134, it is said:

"Appellant's insistence that the validity of the will must be tested by the law in force at the time of its execution is without merit. A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time when it takes effect, upon the testator's death. Dodge v. Williams,46 Wis. 70 [1 N.W. 92, 50 N.W. 1103]; De Peyster v. Clendening, 8 Paige [N.Y.] 295."

The converse of the question under consideration was decided in Johnson v. Williams, 152 Mass. 414, 25 N.E. 611. In that case, at the date the will was executed, a married woman had the power to devise all of her property away from her husband, and the testatrix made a will so devising it; but before her death this statute was changed, so as to prevent her from alienating from her husband $5,000 worth of her real estate, if she left no children. In holding that the law in force at the time of the death of the wife, and not that at the execution of the will, governed, the court say:

"Mrs. Johnson died leaving real estate not exceeding $5,000 in value, and not leaving issue surviving her. Under the statute in force at the time of her decease, her real estate descended to her husband, and she had no power to devise it away from him. Sears v. Sears, 121 Mass. 269; Burke v. Colbert,144 Mass. 160 [10 N.E. 753]. It is immaterial if the statute in force when she executed her will authorized her so to devise it. The statute was changed before her will took effect, and the power was taken from her, and there is no expressed or implied exception in the statute of wills executed before it took effect."

This case seems to us directly in point. In that case, at the time of the making of the will, the wife had undisputed power to dispose of all of her property. Prior to her death the law was changed restricting this right. In the case at bar the right to will this land was restricted when the will was made, but these restrictions were removed prior to the death of the testator. It seems to us that the two cases are analogous.

We have considered the second ground in the petition for rehearing, that we were in error in holding that the rule provided by the act of April 26, 1906, cited in the original opinion, supersedes the Arkansas statute in this case. We have carefully considered this question, and are satisfied with our former conclusion.

We therefore recommend that the petition for rehearing be denied.

By the Court: It is so ordered.