Appellant asks for a construction of a written ante-nuptial contract to determine whether by its terms her husband has released his intestate rights in her personalty. The primary question is whether the facts present a controversy susceptible of determination under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, as amended. The learned court below held they did not, and this appeal followed.
In conformity with the general principle that courts do not pass upon moot cases (Winston v. Ladner, 264 Pa. 548; Faust v.Cairns, 242 Pa. 15), because the effect of so doing would be to give an advisory opinion binding no one, we laid down the rule in Kariher's Petition (No. 1), 284 Pa. 455, 472, that "in a declaratory judgment proceeding the court will not decide future rights in anticipation of an event which may not happen, but, just as in the ordinary executory action, it will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision, as, for instance, where present rights depend on the declaration sought by plaintiff. . ." This rule has been consistently followed: Straus' Estate, 307 Pa. 454, 457-8-9; Sterrett'sEstate, 300 Pa. 116, 123-124; Pittsburgh's Consolidated CityCharter, 297 Pa. 502, 505-6-7; Reese v. Adamson, 297 Pa. 13;Lyman v. Lyman, 293 Pa. 490, 495-496; Brown's Estate,289 Pa. 101, 122-123. In the instant case the possible litigation depends absolutely on two contingencies: that appellee survive appellant, and that appellant does not part with all her personalty during her lifetime. Either of these is sufficient to render the question unjusticiable. Appellant points to no special circumstances warranting an immediate decision, and no present rights depend on the declaration, because *Page 344 she is now in no way restricted in the management and inter vivos disposition of her personal estate.
The majority asserts, however, that the Amendment of April 25, 1935, P. L. 72, to the Act widens the scope of the declaratory judgment remedy, and authorizes its use in three alternative situations:
(1) Where an actual controversy exists or
(2) Where antagonistic claims are present which indicate imminent and inevitable litigation or
(3) Where in any such case one party asserts a legal relation or status which is denied.
The majority insists that where one party asserts a legal relation or status which is denied, the court may make a declaration even though there is no actual controversy and litigation is not imminent and inevitable. If this construction is correct, the first two alternatives are entirely meaningless. Admittedly the third is obscure, but it does include the first two because the word "where" is followed by the words "in any such case", which definitely refers to the first two situations. The analysis of the majority in no way attempts to explain this contradiction of its position. There was a reason for the passage of the Amendment, and it was not to destroy the original Uniform Declaratory Judgments Act, but to correct errors in judicial interpretation and bring the Act back to its original meaning. Professor Edwin M. Borchard, an authority on the subject, who was a co-draftsman of the Uniform Declaratory Judgments Act and of the Federal Act, in an article entitled "Recent Developments in Declaratory Relief" (10 Temple L. Q. 233, 1936) (and in his treatise on Declaratory Judgments, 1941, p. 318 et seq.) states that the Uniform Declaratory Judgments Act was originally intended to provide an alternative remedy to be available even though there was already an existing common law or equitable remedy, though not if there were an existing statutory remedy, and that the rule to this effect laid down in Kariher's Petition, supra, was subsequently departed *Page 345 from in Leafgreen v. La Bar, 293 Pa. 263; Nesbitt v.Manufacturers' Casualty Ins. Co., 310 Pa. 374, and BellTelephone Co. v. Lewis, 313 Pa. 374. To correct this error, says Professor Borchard, and to bring the Act back to its original meaning, Chief Justice von MOSCHZISKER, after retirement from the bench, drafted the amendment in question.
Professor Borchard views the amendment as expressing in precise detail the rules of Kariher's Petition, supra, which he considers a good statement of the essential requisites of a declaratory judgment (10 Temple L. Q. at p. 233). With respect to the justiciability of the controversy he says in his treatise (p. 37) that the plaintiff's interest "must be present, and not contingent, though it may be presently affected or jeopardized by a future event certain to occur." And concerning ripeness of the issue he states (pp. 56-7, 60): "When are the facts sufficiently developed to admit of a conclusive adjudication, and when are they so contingent and uncertain as to justify a refusal to decide? Again, no a priori answer is possible. The only safe guide is an analysis of the precedents in which declaratory judgments have been granted and declined. In general, it may be said that the facts on which a legal decision is demanded must have accrued, for the principle of a declaratory judgment is that it declares the existing law on an existing state of facts. The danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events — although it may involve future benefits or disadvantages — and the prejudice to his position must be actual and genuine and not merely possible or remote. When the complaint on these tests is considered premature, the dismissal may be explained by any one of a series of labels, e.g., that there is as yet no 'controversy', that the issue is hypothetical, that the result would be only an advisory opinion, etc. Where the plaintiff is merely in doubt as to his rights under a written instrument, such as a will, and there is either no one who disputes *Page 346 the claim or else some event must happen before the plaintiff's right fully accrues, the action is naturally considered as prematurely brought. . . . The imminence and practical certainty of the act or event in issue, or the intent, capacity, and power [of a debtor-plaintiff] to perform, create justiciability as clearly as the completed act or event, and is generally easily distinguishable from remote, contingent, and uncertain events that may never happen and upon which it would be improper to pass as operative facts. Again, where it appears that acts within the plaintiff's own control may make the decision academic, the court in its discretion may decline a declaration" (citing Lyell v. Cormack, 40 B. D. 345). And on page 81, n. 18: "Actions for declarations are occasionally brought upon an assumed state of facts or before all the facts upon which rights depend have yet accrued; the facts posited may never arise and are therefore contingent or uncertain. Under such circumstances, courts are justified in refusing to render declaratory judgments on the ground that they are not ripe for such judgment, the effect of which would be essentially that of an advisory opinion." These quotations from Professor Borchard fit the instant case exactly. See also, Borchard, Declaratory Judgments in Pennsylvania, 82 U. of Pa. L. Rev. 317, 330-31. Although he has, for at least twenty-five years, advocated the extension of the scope of the declaratory judgment remedy (see his first articles in 28 Yale L. J. 1-32, 105-150), he nowhere suggests that it be applied to contingent claims or moot cases, and cites no decisions so doing.
In Kariher's Petition, supra, we said (p. 471) that an actual controversy must exist and that we would not decide future rights in anticipation of an event which might not happen. And where the court of first instance has in the exercise of its discretion assumed jurisdiction and entered the decree, we have reversed and held that the petition showed no actual controversy because the threatened litigation was not inevitable: Sterrett's Estate *Page 347 supra; Pittsburgh's Consolidated City Charter, supra; Lyman v.Lyman, supra. When the courts have put a particular construction upon certain words, and the legislature later uses those words in a statute, they are to be given the construction already placed on them: Statutory Construction Act of May 28, 1937, P. L. 1019, Art. IV, par. 52 (4); L. Nazareth Twp.Supervisors' Appeal, 341 Pa. 171, 175; United States v. Burr, 4 Cranch 470, 471. Therefore, the requirements of an actual controversy and imminent and inevitable litigation, which the court followed before the 1935 Amendment, should continue to be applied unless the Amendment proceeds to enlarge the scope of the words or remove former restrictions on them. No such expressions are to be found in the Amendment. There is no "actual controversy" in any legal sense or "imminent and inevitable litigation", visible in the instant case.
After the passage of the 1935 Amendment we continued to adhere to the rule that contingent rights will not be adjudicated in declaratory judgment proceedings: Kahn v. Wm.Goldman Theatres, Inc., 341 Pa. 32; Capital Bk. and Tr.Company's Petition, 336 Pa. 108; Quigley's Estate, 329 Pa. 281;Carwithen's Estate, 327 Pa. 490. In Carwithen's Estate, supra, we said, relative to a trustee's petition to determine whether a will authorized certain investments opposed by the beneficiaries (p. 493): "Petitioners now desire a decision of what in some future proceeding may or may not be a subordinate question. It is easy to see that in some circumstances such a question cannot arise, and that in others in which it may arise, the facts on which it may then be presented cannot be anticipated. The contingent character of the circumstances presented by petitioners takes the case out of the class in which the court will enter declaratory judgments. The court is not vested with jurisdiction to give advice merely: Cryan'sEstate, 301 Pa. 386, 391, 152 A. 675." After quoting the Amendment in question, we continued (p. 494): ". . . We think there is nothing *Page 348 on this record to sustain a declaration; there is no actual controversy; there may be one some day if the trustees fail in the measure of their duty with resulting loss; but the circumstances cannot be anticipated and without them there is no 'actual controversy' on the point; the record does not present antagonistic claims indicating 'imminent and inevitable litigation'. The parties may differ on what the will means, but that is not enough to support the declaration made." InQuigley's Estate, supra, we said in reference to this and another amendment passed in the same year (Act of May 22, 1935, P. L. 228), (p. 294): "These acts, however, still leave to the court the discretion to render declaratory judgments or decrees only where it is convinced 'that such a judgment or decree is appropriate and proper to be entered,' and is satisfied that antagonistic claims are present 'which indicate imminent and inevitable litigation.' " In Capital Bk. and Tr. Company'sPetition, supra, in which a trustee sought a declaration of its authority to make a lease of mortgaged premises and to subordinate the lien of the mortgage to the proposed lease, we said in reversing a decree granting the relief prayed for (p. 111): "As we have stated before, the vital factor in the assumption of jurisdiction is the presence of antagonistic claims indicating imminent and inevitable litigation, coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy: Reese v. Adamson,297 Pa. 13; Carwithen's Estate, 327 Pa. 490. Tested in the light of the foregoing principles, the present petition fails to support the relief there sought. Rather it is an attempt to get the court to decide future rights in anticipation of an event which may not happen . . ."; and on page 112: "Here it might well happen that there never will be litigation." And recently in Kahn v. Wm. Goldman Theatres, Inc., supra, where plaintiff sought to determine whether her realty was still subject to an option to purchase held by defendant, though she was not under contract *Page 349 to sell to any one else, we reiterated our former views (p. 35): "Plaintiff attempts in this action to get the court to decide future rights in anticipation of an event which may never happen. She does not present 'an actual controversy, or the ripening seeds of one' which is essential to obtaining the declaration sought: Kariher's Petition (No. 1), 284 Pa. 455, 471." And after quoting the amending acts, we continued: "All that plaintiff avers is that the option granted to defendant under the covenant contained in the deed has expired in her and her counsel's opinion, and, while defendant or its attorney may not concur with them in that belief, there is no allegation that defendant has asserted any claim or hinted at the possibility of litigation, or that plaintiff has taken any action or is contemplating taking any steps which would be in any way affected by what defendant thinks. If and when the differences of opinion between counsel and their clients become something more than that, the court may act . . . there is no actual controversy, at this juncture, between the parties, and the court is, therefore, without authority to affect their rights under the terms of the deed. Any opinion in the present state of the record would be merely advisory in nature; and such opinions are not contemplated under this legislation:Ladner v. Siegal, supra, 372, Cryan's Estate, 301 Pa. 386, 391."
In the only cases relied on by the majority, Grambo v. SouthSide Bank and Trust Co., 141 Pa. Super. 176, and Day v.Ostergard, 146 Pa. Super. 27, no contingency existed to threaten the inevitability of the litigation, all the facts fixing the parties' right having already occurred. While these cases may hold that the 1935 Amendment sanctioned a wider use of the declaratory judgment procedure where there is already another established remedy, they in no way purport to broaden its scope where litigation is not inevitable. They are, therefore, not in point. The majority opinion in effect authorizes any party to an executory contract before *Page 350 breach to have his rights determined whenever there is a difference of opinion as to the meaning of a written instrument, and makes it reversible error for a court in its discretion to refuse to do so. This is contrary to the whole theory of declaratory judgments.
For these reasons, and those stated in the dissenting opinion of Mr. Justice MAXEY, I would affirm the court below in dismissing the petition. To assume jurisdiction on the facts presented, as the majority does, is to open the gates to a flood of litigation of an advisory nature upon controversies which may never arise.
Mr. Justice PATTERSON joins in this dissent.