Philips v. Gray

1 Ala. 226

• Court: Supreme Court of Alabama
• Decided: January 15, 1840
• Status: Published

Opinion

ORMOND, J.

— The right of the defendant in error, to maintain-this-action, on the possession of his intestate, is attempted fo be derived from an act of the last legislature, which is to the following effect: — “ that it shall hereafter be lawful for executors and’ administrators, to rent at public outcry, the real estate of any decedent, until a final settlement of the estate of the said decedent is effected, and that the proceeds shall be assets in the hands of such executors-or administrators.”

There can be no doubt, that in all cases coming within the purview of this act, after its passage, the right of the heir to enter upon and enjoy the real estate of his ancestor, is intercepted in favor of the personal representative of the deceased, until final settlement of the estate. But can the statute have a retrospective operation, so as to divest the title of the heir and confer it on the personal representative ? We need not enter on the question, whether the legislature had such power, because we think they have not exercised it. The language of the act, is that, “hereafter,” etc. designing, doubtless, to leave vested rights upon the footing they then stood, and looking to the future for the operation of the act.

The future is the appropriate field of legislation; and a statute is never allowed to have a retrospective operation, unless clearly so expressed: or unless such implication must be made, to give effect to the manifest intent of the legislature. But this act, in its terms, has the future and not the past, in its view : and no reason has presented itself to our minds, why a construction should be put on it, diflerent from the one. apparent on its face: but on the contrary, many reasons exist, making it improper that such an act should be passed.

The decedent in this case, as appears from the record, died before the passage of the act; there was, consequently, a descent cast on his heirs at law, who succeeded to all the rights of their ancestor in the realty, and consequently, to the right to recover the possession of the premises sued for, if the possession of the ancestor had been invaded.

It is not necessary now to decide, whether the personal representative of a decedent, would have the right, under this statute, to recover the possession of lands, to enable him to rent them: and therefore no opinion is expressed on that point.

Let the judgment be reversed.