Socks's Estate , 15 Pa. Super. 281 ( 1900 )

Per Curiam,

This case involves the construction of the 11th section of the Act of April 26, 1855, P. L. 328, which provides as follows: “No estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor, and all dispositions of property contrary hereto, shall be void and go to the residuary legatee or devisee, next of kin or heirs, according to law, provided that any distribution of property within said period, bona fide made, for a fair, valuable consideration, shall not be hereby avoided.”

This will was executed on July 11, 1898, and the testatrix died at six o’clock R. m. on August 10, following. To make a calendar month, there must be included in the computation not only that part of July 11, which had passed prior to the execution of the will, but also that part of August 10, which remained after the death of the testatrix. Manifestly a calendar month did not intervene between the act of the testatrix and her death. She died within the calendar month beginning on July 11. To say that the will was executed a calendar month before her death, the legal fiction that she did not die until the last day of the month had been fully completed and ended, must be substituted for the actual fact. Fictions of law are sometimes resorted to in furtherance of justice, but never to override the plain intention of the legislature in enacting a law or of the parties in making a contract. The case of Carl’s Appeal, 106 Pa. 635, furnishes a good illustration of this principle, if one is needed. The statute declares, that, to be valid, the act must be done at least one calendar month before the happening of a certain event, and notwithstanding the very earnest and ingenious argument of the appellant’s counsel, we are of the opinion that the court below correctly construed the act to mean that the day of the happening of the event is not to be included in the computation. We have carefully examined all the cases cited and do not find that they are in conflict with this conclusion. We cannot extend the discussion without mere repetition of what is contained in the clear and concise opinion of the court below, and that would be unprofitable.

The decree is affirmed and appeal dismissed at the costs of the appellant.