dissenting :
I respectfully dissent.
We recently said in Wesley Home v. Merc.-Safe Dep. & Tr., 265 Md. 185, 198, 289 A. 2d 337 (1972), that “the cardinal *60principle of construction of wills [is] that the intention of the testator be carried out, as deduced from the ‘four corners’ of the will,” citing a number of Maryland cases. I regard it as manifestly improper to divine that intention by making use of a statute that did not come into existence until many years after the effective date of the instruments in the absence of a clear indication in the instruments that law of a later date should be used. I believe such use of later law in this construction is not in accord with the law of Maryland. I say this because the principle is well established in Maryland that a will is to be construed according to the law in force at the time it takes effect.
In James v. Rowland, 52 Md. 462 (1879), our predecessors were confronted with a question closely analogous to that with which we are here concerned. A will was executed in 1848 and probated in 1849. The will referred to certain things that should take place if the testator’s grandson “should die without heirs ....” By Chapter 161 of the Acts of 1862 (later, without change, Md. Code (1957) Art. 93, § 365, and now, with stylistic changes, Code (1974) § 4-410 Estates and Trusts Article) the General Assembly provided for the meaning to be accorded to “the words ‘die without issue,’ or ‘die without leaving issue,' or any other words which may import either a want or a failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue . . . .” Judge Irving there said for our predecessors:
“The question is, what estate did Watkins James, son of Bennett James, take in the land in question? It is perfectly clear that if Watkins should be living at the death of Bennett, the testator intended him to take a fee, and used the most apt words to effect that purpose. The only question is, are there any words in the will making a fee defeasible at any time; and making a good, executory devise over? The Act of 1861-2, ch. 161, regulating the construction of certain doubtful expressions in a will, cannot be resorted to in aid of the construction *61of this will, which took effect and created vested interests in 1849. Like the statute of England of 1837, from which it was evidently copied, it creates a change in the common rule of interpretation, and only affects wills made and executed afterwards, for the patent reasons that the testator is always to be understood as using the words employed, in the sense attaching to them at the time he uses them, and that the devisee is entitled to the construction they would have received at the time they became operative, had the question arisen, without being affected by an after-established statute, applying a new meaning to the words.” Id. at 466-67.
Similar statements relative to that statute are found in Benson v. Linthicum, 75 Md. 141, 144, 23 A. 133 (1891); Comegys v. Jones, 65 Md. 317, 320-21, 4 A. 567 (1886); Dickson v. Satterfield, 53 Md. 317, 322 (1880); and Estep v. Mackey, 52 Md. 592, 596 (1879).
In Magruder v. Carroll, 4 Md. 335 (1853), our predecessors pointed out with reference to a change which took place in our statutory law prior to the death of the decedent:
“The law imputes knowledge to him of the provisions of the act of 1849, and the interpretation it would receive. He had ample time to alter his will, and failing to do so must be considered as having intended all his property real and personal should pass under it.” Id. at 350.
In Johns v. Hodges, 33 Md. 515, 526 (1871), the Court again said, that time referring to the act of 1849, that the will “must be governed by the law as it existed when [it] was made, independent of this provision of the Code.”
In Krieg v. McComas, 126 Md. 377, 382, 95 A. 68 (1915), Judge Stockbridge said for the Court that since “[t]he will and deed of trust were executed and the death of Ellen Vernon occurred prior to the passage of [Chapter 249 of the Acts of 1888, then Code (1912) Art. 93, § 330] ... the Act cited could in no way apply ....”
*62In Bartlett v. Ligon, 135 Md. 620, 626, 109 A. 473 (1920), the Court said that “it [was] to be presumed that [the testatrix] made her will in view of the law as it stood when she made it....”
The Court was concerned with a will probated in 1920 in Livingston v. Safe Dep. & Tr. Co., 157 Md. 492, 146 A. 432 (1929). There a legatee had died a few days before the testatrix. The testatrix was mentally incompetent at the time of the death of the legatee and remained so until her own death. The 1910 lapsed legacy statute provided that it should not apply in the case of a person who died after the passage of the act where after the execution of the will and before the death of the legatee the testatrix became insane or otherwise incompetent. This law was repealed by Chapter 202 of the Acts of 1920, subsequent, however, to the death of the testatrix. The Court said:
“[A]s the rights of all parties to this appeal became fixed and vested at a point of time certainly not later than the death of the testator, they must be determined in accordance with the law as it existed then____” Id. at 496.
As Judge Singley pointed out for the Court in Weller v. Sokol, 271 Md. 420, 430, 318 A. 2d 193 (1974), Evans v. Safe Deposit & Trust Co., 190 Md. 332, 347, 58 A. 2d 649 (1948), stands for the proposition that the rules of construction to be applied to a will “are those which were recognized at the time the will took effect ....” More recently in Sokol v. Nattans, 26 Md. App. 65, 71, 337 A. 2d 460, cert. denied, 275 Md. 755 (1975), Chief Judge Orth of the Court of Special Appeals (now a member of this Court), after stating the amount of compensation properly due the trustees, said for the court that “[i]n so construing the will [the court] look[ed] to the status of the law at the time [the will] was executed.”
E. Miller, Construction of Wills § 3, at 11-12 (1927), in a footnote considers the question of “[w]hether a statute applies to a will made before the passage of the statute,” a “subject [which he says] belongs to the interpretation of *63statutes rather than to the construction of wills.” He there cites Bartlett, Krieg, Benson, Comegys, Dickson, Estep, James, and Johns as I have cited them.
In footnote 4 the majority opinion states:
“Where, as here, the gifts to the ‘children’ or ‘descendants’ are in the nature of class gifts, i.e., to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, the class can be determined by reference to the law in force when the instrument was executed, when it became effective, or when the beneficiaries become fixed or the interest vests; there is no hard and fast rule regarding the law applicable to the ascertainment of a future class where the instruments do not evince any intent regarding applicable law. Baker v. Baylies, 231 Md. 287, 189 A. 2d 820 (1963). Nothing in Gutman v. Safe Deposit & Trust Co., [198 Md. 39, 81 A. 2d 207 (1951)], calls for a contrary conclusion.”
What the Court said in Baker v. Baylies, 231 Md. 287, 189 A. 2d 820 (1963), is:
“The will gives persuasive evidence, we find, that the testator intended the law in force when it was made (and when it was probated) to control the determination of those who would be his heirs at the termination of the last life estate. He had the right to use any yardstick he chose which did not violate the law. Whether a testator intends that beneficiaries, classes or interests are to be determined by the law in force (a) when the will is made, (b) when he dies, or (c) when the beneficiaries are fixed or the interest vests is a question of his intent to be deduced from the language of the will, read in the light of the surrounding facts and circumstances. 4 Page, Wills (Bowe-Parker Rev.), Sec. 30.8 at 60; 5 American Lavo of Property Sec. 22.60; Thom v. Thom, supra at pp. 457 and 458 of 101 Md.” Id. at 293.
*64The Court there was concerned with the construction of a will and the question presented was whether the taker of the ultimate remainder should be determined upon the basis of the law in effect at the time of the death of the testator or on the basis of the law in effect when the last surviving life tenant died without issue. I have no quarrel with the statement there appearing that the testator “had the right to use any yardstick he chose which did not violate the law.” The concern of the Court in Thom v. Thom, 101 Md. 444, 458, 61 A. 193 (1905), was with an instrument which provided “that upon failure of the exercise of [the specified] powers then ‘In trust for such person or persons as would by the now existing laws of Maryland be the heirs at law,’ &c.” (Emphasis in original.) I do not dispute the validity of the' statement that if there is something in a will indicating that a will is tchjbe interpreted by the law in force at a later time, such provision would be valid and would govern. In the case at bar, however, we have no such provision in any of the instruments. I thus find repulsive and preposterous the proposition that a skilled scrivener, a testator, or a settlor would and should be obliged to anticipate that the General Assembly of Maryland in its wisdom might see fit at a later date to ordain that the terms “child,” “children,” “descendants,” and similar terms used in these instruments should be interpreted in a manner other than was commonly understood at the time of the preparation of the instruments in question. It seems to me that to so hold means that we do not place ourselves in the position of a testator and thus do not determine his intention “from the ‘four comers’ of the will.” In this regard it must be remembered, as the majority correctly states, that it was not until .1892 with the passage of Chapter 244 of the Acts of that year that a general statute was enacted providing for adoption of children. Moreover, our predecessors held in Hillers v. Taylor, 108 Md. 148, 69 A. 715 (1908):
“The adoption of children, although a practice of great antiquity recognized by the civil law throughout its entire history and observed in *65countries whose jurisprudence is founded on that law, was unknown to the common law and exists in States, which have inherited that system of jurisprudence, only by virtue of statute. A. & E. Encycl., vol. 1, p. 726; 1 Cyc., 917.” Id. at 155-56.
See also Zimmerman v. Thomas, 152 Md. 263, 265, 136 A. 637 (1927). The first of the instruments with which we are here involved was written but 19 years after the passage of that act in 1892 and but three years after the decision in Hillers. Then, as the majority correctly notes, our predecessors held in Eureka Life Ins. Co. v. Geis, 121 Md. 196, 199, 88 A. 158 (1913), that an adopted child could not take a remainder interest under a will left to a “child” of an adoptive parent by the parents’ lineal or collateral kindred.
I regard the decisions of our predecessors relative to the interpretation to be given such terms as “die without issue” or “die without leaving issue” as dispositive of the issue here.
It will be noted that in our cases construing the applicability of Chapter 161 of the Acts of 1862.the Court did not rest its decision upon constitutional grounds. Of course, the first of those cases was decided but a short time after the adoption of the Fourteenth Amendment to the Constitution of the United States. However, our forebearers in 1776 incorporated into Art. 21 of the Declaration of Rights of the Constitution of that year a provision “[tjhat no freeman ought to be ... deprived of his ... property, but by the judgment of his peers, or by the law of the land.” Basically the same proposition is found in our present Declaration of Rights, Art. 23 and was found in each of our earlier Constitutions. See Constitutional Convention Commission, Constitutional Revision Study Documents 610-11 (1968). As recently as last year in Barry Properties v. Fick Bros., 277 Md. 15, 22, 353 A. 2d 222 (1976), Judge Digges quoted for the Court from Bureau of Mines v. George’s Creek, 272 Md. 143, 156, 321 A. 2d 748 (1974), to the effect that the due process danse?, of our Art 23 am1 of the Fourteenth Amendment to the Constitution of the United States “have the same *66meaning and effect in reference to an exaction of property, and that the decisions of the Supreme Court on the Fourteenth Amendment are practically direct authorities [as to the proper interpretation of Article 23].” He also cited Allied American Co. v. Comm’r, 219 Md. 607, 615-16, 150 A. 2d 421 (1959), and Goldsmith v. Mead Johnson & Co., 176 Md. 682, 686-87, 7 A. 2d 176 (1939).
It seems to me that this Maryland constitutional provision is yet another reason for holding that under Maryland law the provisions of Code (1957, 1973 Repl. Vol., 1976 Cum. Supp.) Art. 16, § 78 (c) may not be interpreted as applying retrospectively to the determination in this case of whether the terms “child,” “children,” “descendants,” or equivalent terms in the instruments in question include an adopted child, a question not propounded to us or considered by us in Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 327 A. 2d 483 (1974).
There are numerous decisions of this Court to the effect that a statute, even if the General Assembly so intends, will not be applied retrospectively to divest or adversely affect vested rights, to impair the obligation of contracts, or so as to violate the due process clause. See, e.g., Smith v. Westinghouse Electric, 266 Md. 52, 57, 291 A. 2d 452 (1972); Janda v. General Motors, 237 Md. 161, 169, 205 A. 2d 228 (1964); Harris v. Whiteley, 98 Md. 430, 442, 56 A. 823 (1904); Remington v. Metropolitan Bank, 76 Md. 546, 548, 25 A. 666 (1893); and Rock Hill College v. Jones, 47 Md. 1, 17 (1877).
The instruments here involved provide in essence for a life estate in William Bauernschmidt, Jr., with remainder to his surviving children and descendants. In the event, however, that he died without leaving surviving children or descendants, then the remainder was to pass to those persons who are appellants here. Without becoming involved in a discussion as to whether the interests of the appellants were descendible, devisable, and assignable prior to the death of William Bauernschmidt, Jr., I am persuaded that there is such a vested right as is constitutionally protected. See, e.g., relative to contingent remainders and whether they are descendible, etc., In re Moore, 22 F. 2d 432 (D. Md. *671927); In Re Clayton’s Trust Estate, 195 Md. 622, 625-26, 74 A. 2d 1 (1950); Evans v. Safe Deposit & Trust Co., supra, 190 Md. at 347; Hammond v. Piper, 185 Md. 314, 319, 44 A. 2d 756 (1945); Hans v. Safe Dep. & Tr. Co., 178 Md. 52, 63, 12 A. 2d 208 (1940); Reilly v. MacKenzie, 151 Md. 216, 225, 134 A. 502 (1926); R. Reno, Further Developments as to the Alienability and Transmissibility of Future Interests in Maryland, 15 Md. L. Rev. 193, 197-98 (1955); and R. Reno, Alienability and Transmissibility of Future Interests in Maryland, 2 Md. L. Rev. 89 (1938). I find persuasive on this subject the statement in 1 L. Simes and A. Smith, Future Interests § 136 (2d ed. 1956):
“It is frequently said that ‘vested rights’ are the subject of the protection of constitutional guaranties, such as the due process clause of Federal and State Constitutions and the clause prohibiting the taking of private property for public use without compensation. Doubtless the term ‘vested’ when so used begs the question, since it is assumed that it has already been determined that the right in question will be protected. It seems clear, therefore, that the term, if used at all in connection with constitutional questions, should not be regarded as synonymous with the same expression when used in the law of real property. In other words, there is no rule to the effect that a vested remainder is protected under Federal and State Constitutions but a contingent remainder is not. Indeed, it would be most unfortunate if such were the law; for many contingent future interests are of far more substantial character and more likely to take effect in possession than some future interests which are vested subject to be divested. However, some courts have taken the position that a statute which operates to destroy a contingent future interest does not violate the constitutional guaranties mentioned above because it is not a vested interest. The only conceivable basis for such *68a decision would seem to be that a contingent interest is not the ‘property’ of the holder thereof; it is something which he may have in the future, but it is not property now. This clearly begs the question as to whether the particular interest ought to be protected. The contingent interest, though perhaps not an estate, has achieved status as a protectable interest for many purposes. Doubtless the so-called future interest given to unborn persons, or the bare expectancy of an heir apparent are extremely tenuous interests so far as present legal relations are concerned. But to leap to the conclusion that because some contingent interests are too tenuous to bear the label of ‘property’ that therefore all contingent interests are not ‘property’ is totally unwarranted. When a contingent remainder is limited to an existing ascertained person there is no question but that the courts will recognize the interest as having present existence. The wide acceptance of that fact makes it clear that the interest is ‘property’ in the usual sense of the word. Whether a given future interest is of a sufficiently substantial character to be given the protection of a particular constitutional guaranty would seem properly to depend upon factors other than the classification as vested or contingent.” Id. at 116-18.
1 regard the retrospective application of the adoption statute to the instruments here as a clear violation of the Maryland Declaration of Rights and I would answer the questions propounded accordingly.
I am authorized by Judge Digges to say that he concurs in the views here expressed.