(dissenting):
I do not agree with the construction, placed by the presiding justice on section 41 of the Devised Statutes (Vol. 2. [9th ed.], 1877) which directs that a subscribing witness- to any will, who shall neglect- to write opposite his name his place of residence, “ shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue, for the same.” j ;
That the only question necessary to be considered in the case at bar is whether the three-year Statute of Limitations is-a bar to the .action is. entirely clear; but that the right' to recover tbf penalty first accrues to the interested party immediately after the execution of the will I cannot believe, and to the assumption that tlie maker of a will may in any case recover the penalty I do npt assent.' *21This -intimation that the testator may recover the penalty is only a dictum, but in my opinion is too important to pass without consideration.
As to the construction of statutes, Baron Parke, in Becke v. Smith (2 M. & W. 191), said (p. 194): “ It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads, to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.” This sentence has often been ■ called the golden rule of statutory construction.
To my mind there is no warrant in the language of the enactment for giving the statute in question such a construction as to. permit any testator to recover the penalty from an obliging but unfortunate subscribing witness who has neglected to add his place of residence. Indeed, it would in effect encourage those of sufficient depravity to repeatedly execute wills and recover the penalties, as long as they could obtain subscribing witnesses able, to pay and ignorant of the statute.
The statute says, “The witnesses to any will,” etc., but no one would contend that the expression was intended to include the will of a person without capacity to execute, or a foreign or revoked will. Beferring to the penalty, it says “to be recovered by any person interested in the property devised or bequeathed.” Undoubtedly the last four words mean property which has been devised or .bequeathed. No devisee or legatee, under the latter of which classes the respondent claims, can have an actual and enforcible interest in the property devised or bequeathed until the death of the maker of the will renders effectual the testamentary disposition of his property.
A brief reference to the fundamental principle of wills and a single illustration will suffice to show just when a legatee first takes his interest in bequeathed property, which is only another form of the question at issue.
A chief characteristic of a will is that it is ambulatory and revo- ' cable during the life of the testator; it can take effect only after the death of the testator, which completes, confirms and makes the will *22irrevocable. A deed may postpone the possession or. enjoyment until the death of the grantor, but the postponement does not result, as in the case of a will, from the nature of the instrument. On the' contrary, it is caused by the express terms of the deed, and tliie vested right to the future enjoyment passes at once to the grantee. The deed operates in jprmenti, and the grantee has an immediate interest ; the will operates infuimro, and the devisees and legatees “ take no interest whatever ” until the decease of the testator calls the instrument into operation. (1 Jarm. Wills [5th Am. ed.], 16, 26.)
It follows that no action to recover the penalty can be brought by the person named as devisee or legatee before the death of the testator.
The respondent also claimed a right to recover- the penalty as heir. Whether, an heir, as such, may recover the penalty in any case, it is not necessary here to decide; but that the mere: expectancy of the heir, or his inchoate right to take by descent or distribution, does not ripen into a legal interest in the property before the death of' his ancestor, is perfectly plain. And that by interest the Legislature had in mind an actual, legal, interest, and: not one which, at best, is only remote and contingent, I am entirely clear.
It is satisfactory -to know that this is the first action of the kind ever brought in this State, but while the statute remains unirepealed o.ur sympathy for subscribing witnesses should not cause ns to disregard the true rules of statutory construction and enlarge the scope of a statute which, at best, is a hardship on those who, while gratuitously performing a somewhat thankless task, without actual fault on their part, render themselves liable to a penalty at the hands of the very persons they benefit.
For the reasons above stated, I think no action to rec'over ¡the penalty accrued to the respondent oefore the.decease of the testator in 1897; that, consequently, the Statute of Limitations is not a. bar to his action and that the judgments should be affirmed."
J ndgment reverse^ and new trial granted in each case, costs to abide the event.