Crofton v. Ilsley

Weston J.

By the laws of most civilized countries, to which possibly no exception now exists, the disposition of the personal estate of any one deceased, is determined by the law of his dom-icil. With regard to real estate ; the tenure by which it may be holden, the mode of enjoyment, the instruments and solemnities, by which it may be transferred, and the right of succession thereto, upon the decease of the owner are uniformly regulated by all nations, possessing regular governments, so far as we know, by the lex rei sita.

In relation to personal property owned by persons' resident abroad, who had deceased, after making a testamentary disposition thereof, according to, the law of their domicil, proved and allowed by the regular foreign jurisdiction, the laws of Massachusetts,' prior to the separation, had prescribed a mode of giving effect to such dispositions, without reuqiring any particular mode of execution or authentication abroad. The statute contained a clause, providing that nothing therein “ shall be “ construed to make valid any will or codicil, that is not attested “and subscribed in the manner the laws of this commonwealth direct, nor to give operation and effect to the will of an alien different from that which such will would have had, before the “ passing of this act.” A prior statute of Massachusetts had prescribed, that wills devising lands, tenements, and heredita-ments, should be attested by three witnesses ; but contained no provision as to the attestation of wills of persona] estate only.

In the revision of the general statute laws, which was made in this state in 1821, it was deemed a convenient mode to digest and arrange into one act, statutes relating to the same subject matter which had passed at successive periods. In regard to wills, the Legislature thought proper to abolish the distinction, which had previously existed, between wills of real and of personal estate ; and to require the same attestation in the latter as in the former. The proviso, before referred to, in the act of Massachusetts was continued, probably without con*139sidering that, in the connexion in which it now stands, in the statute of Maine, its most obvious construction would seem to require, that the attestation of three witnesses was deemed necessary in a foreign will of personal estate ; although without such attestation, it might be valid by the law of the testator’s domicil, of which the probate by the foreign jurisdiction, is the conclusive and only evidence. As our laws in this particular, may generally be unknown to the testator abroad, and as it is not easy to conceive that our legislature were unwilling to give full effect to the right, now so universally recognized, of disposing of personal property, in conformity with the laws of the country, where the deceased had his domicil, we are not inclined to believe that they intended to introduce a provision, inconsistent with this principle. Whether the words of the proviso warrant a construction giving effect to such wills, not attested as our laws require, or whether further legislation upon the subject may not be found expedient, we give no opinion ; as in the view we have taken of the case before us, the determination of this point is not necessary to its decision.

In the revised statute of 1821, the legislature, so far as alterations were made in the prior law, intended to prescribe new rules for the future, not for the past. Upon every sound princi - ple of construction, laws should be prospective in their operation. The past, when private rights are concerned, is not within the legitimate scope of legislation ; and although the tense used, according to the strict rules oí, grammatical construction, may seem to regard the past, yet this often arises from considering events, then future, as past in reference to proceedings provided for and regulated, which must necessarily succeed these events in the order of time. This results as well from the imperfection of language, as from a want of attention and accuracy in the use of it.

With regard to wills made prior to the enactment of the statute of Maine, which had become consummate by the death of the testator, and which had been made according to existing laws, continuing in force to the period of his decease, it never could hare been the design of the Legislature to vacate and annul them *140and to leave the estate bequeathed to pass in different channels ; thus defeating the lawful intentions of the testator. If they had power to do this, nothing short of the most express and unequivocal language could justify such a construction We .are satisfied that the provision requiring the attestation of wills of personal property by three witnesses, must be deemed prospective in its operation; and that it does not affect such as had become consummate prior to the passage of the law. If the will in question bad been a domestic will, it was entitled to probate ; and there is therefore nothing in the proviso to prevent its being filed and recorded as a foreign will, in the probate office in this county.

In conformity with this opinion, the decree of the Judge, in the court below, is reversed ; and the case remitted to him, with a direction that he permit a copy of the will and codicil of the said James Dunn, with the probate thereof, to be filed and recorded in the probate office for the county of Cumberland ; and that he cause such further proceedings to be had in the premises, as to law may appertain.