McCarty v. Hoffman

23 Pa. 507

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1854
• Status: Published

Opinion

The opinion of the Court was delivered by

Woodward, J.

As the law stood when this will was made, and when the testatrix died, a cross, however attested, was not a signature. Nothing but the testator’s name signed by him at the end of the will, or by some person in his presence and by his express direction, would answer the requirements of our Statute of Wills of 1883.

But, by an Act of 27th January, 1848, “every last will and testament heretofore made, or hereafter made, ..... to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects.” Mrs. McCarty made her will April 22, 1847, and died 8th May, 1847. Void for want of signature, was the will validated by the subsequent Act of 1848 ? Undoubtedly it was if the legislature were competent to pass a retroactive law on the subject, for this will is within the very words of the enactment. But in Greenough v. Greenough, 1 Jones 489, it was demonstrated by the late chief justice that the Act of 1848, so far as it was retroactive, was unconstitutional and void. The same thing was asserted again in Snyder v. Bull, 5 Harris 58. This conclusion has our hearty concurrence. As the law of the case stands, therefore, we are obliged to say that this will was not duly executed, and was, consequently, an abortive attempt at a testamentary disposition.

And now, to wit, September 11,1854, this cause came on to be heard, and having been argued by counsel, it is considered and adjudged that the decree of the Itegisters’ Court, of Lycoming county, admitting the paper purporting to be the last will and testament of Ann McCarty to probate as such, be reversed and annulled, and wholly taken for nought, and that the plaintiff in error recover costs.

Lewis, J., dissented.