Mullock v. Souder

5 Watts & Serg. 198

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1843
• Status: Published

Opinion

The opinion of the Court was delivered by

Sergeant, J.

The ground-rents in question must be considered as property acquired after the date of the will; Skerrett v. Burd, (1 Whart. 246); and the rule of law was, at the date of this will, and until the Act of 8th April 1833, that real estate acquired after the date of the will did not pass By any general devise contained in it. Girard v. The City of Philadelphia, (4 Rawle 323). But by the 10th section of that Act, the real estate acquired by any testator, after the making of his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will. If this Act applies to a will dated before its passage, where the testator died subsequently, then the parties to this suit have the title, and partition may be made. We think, however, that it does not. It could only do so by giving the Act a retro-active effect, which will never be done, where such does not expressly appear to be the design of the Legislature; but the Act of Assembly will be left to operate on wills made and executed after the Act comes into operation. A devise of real estate is in the nature of a conveyance ; Harwood v. Goodright, (Cowp. 90); and a statute will not be considered as altering the éffect of a conveyance already made, so as to pass more than it purported to pass when made. A retro-active effect will not be given to a statute so as to affect contracts or property. Dwarr. on Stat. 681. In the case of Ashburnham v. Bradshaw, (2 Atk. 36), a devise to charitable uses was made by a will dated in 1734. The testator lived till July 1736, a month after the Mortmain Act had been passed, and upon a case the Judges certified that the devise was good. And to the same effect are Attorney-General v. Lloyd, (3 Atk. 551); and Same v. Andrews, (1 Vez., Sen. 225). There the application of the statute would have abridged the rights of the devisee; here it would abridge the rights of the heirs; and there seems no difference in the principle;

Leave to discontinue according to case stated.