
    In the matter of John Elcock's Will.
    The Testator in 1823 made his Will of personal property, which was properly executed according to the laws at that time. By an act of 1824, three witnesses were required to Wills of personal property, and the testator died in 1825, leaving no other will- Tiie will having hut two witnesses is void.
    A Will us to personal property is considered as having existence only from the death, and not fr-.-in the time of its execution— and it must be executed according to the requisites of the law at that time.
    This case came up to the Circuit Court of Charleston, on an appeal from the Ordinary. A paper purporting to be the will of John Elcock was propounded for probate, haying only two witnesses. It bore date and was executed on the 9th of March, 1823. Objection to the Will — - That by the act of 1824, three witnesses were required to all wills of personal property, “ from and after the first day of May then next.” That the testator did not die until the first of May, 1825. To this it was replied that the will had been executed before the act was past, and was therefore not affected by it. The Ordinary gave judgment against the will, and upon appeal, Judge Richardson who heard- the cause, agreed in opinion with the Ordinary, and the jury found a verdict against the will. — ■ From this verdict the appeal was taken up.
    
      King for the W ll,
    The act of 1824 was prospective. To construe it in any other way was contrary to just principles. The general doctrine is, that the will takes effect from the execution. The will was valid at its execution, and remained so up to the time of passing the act, and to say that the act rendered it invalid was to admit that it had a retrospective effect. The statute of 1824 was exactly analogous to the statute of wills. Grimke P. L. 82. It is copied from the statute of frauds. The construction under the two acts must be the same. This law has not affected all wills. ■ It has not abolished wills donatio cau-sa mortis. An act ambulatory, as explained by Ulpiaru only means an act that may be changed. But it is good if not altered. Mathew v. Warner, 4 Yes. 200; Slade v. Cooper, 1 Phil. 336,n(a.)2 N. Sc M’C. 482. It had been ruled in England that a will executed before the statute of frauds, was good, though the testator died afterwards.— Gilmore v. Shooler, 2 Mod. 310. This case was exactly in point; the words of the two statutes being exactly the same. So in Noel v Clark, 3 Mod. 218, where the will had been executed but with one subscribing witness, before the statute, it was held good, though the testator died afterwards. Ashburnham v Bradshaw, 7 Mod. 239; Sergeant v Punter, Prec. in Chan. 77; Skinner 227; Downs v Townsend, Ambler 280; Addington v Andrews, 3 Atk. 149. The civil law doctrine was the same. Voet. 2 vol. 272 ; Cod. Lb. F. 3 L. 10. Inst. L 1, T 2, par. 6. In France the same doctrine is maintained in the Code Ci-vile, and in the notes to the Code cases are cited. He also cited Poth. on Test. Would the courtnow change the principles of the law, under which we had lived for more than one hundred years. Suppose our ambassador Mr. Poin-sett, who is absent in Mexico, had died soon after the passing of this act, without complying with its provisions, would his benevolent intentions have been thwarted by a construction varying from the uniform decision of years?
    Finley, against the Will. This ease was within the act, unless excepted by the act itself. But the act excludes the idea of any such exception. The will was ambulatory till the death of the testator, and therefore within the provisions of the act, the testator having died subsequently. If the legislature did not intend to comprehend cases of this sort, would the exception not have been expressly made in the act, the case being one so apparent. Suppose the property had been acquired after the passing of the act; would it not be allowing a transfer of property in a particular way which the legislature had prohibited. As to the civil law, and to the array of French authorities which his friend had made, he could only say, that he did not understand French, and therefore could not answer for their applicability: but French law was not our law. As to the English cases they were contradictory; and those especially from Prec. in Chan. , Skinner and Modern were not applicable. In 7 Bac. ah. 299, it is said the will of a papist is void, having been executed before the statute, its legal effect being from the death and not the execution. The same case there cited, ofBuch v Morgan, wasreported in7Mod. 240. SeeViner tit. Devise. The will was held subject to the law existing at the death, though enacted after its execution. Dyer 143; Com. Dig. tit. Devise. A new publication is required after the act. There was a substantial difference in this respect between testaments and wills. A devise is looked upon as a conveyance at the time it is made, with a power of revocation, and a testament of personal property on the contrary is considered only as taking effect at the death of the testator. It is said not to have any life till then, which expression was used as in contradistinction to the operation of a devise. The property under a devise is considered as having vested at the execution, and to construe a will as only operative from the death would often be to divest the right. 1 Rob. on Wills 231, 232; 7 Mod. 242. Besides, a devisee to all one’s children vests only in the children then in existence. 2 Salk. 691; Cowp. 97 ; 6 Cru. Dig. 69 ; Amb. 451. A will speaks at different times, as to the different estates, real and personal. In this case the party had time enough to alter his will conformably to law.
    
      King, in reply.
    The cases cited by the gentleman supported the positions he (Mr. King,) had assumed. More fraud (as Lord Mansfield said,)had been committed under the statute than before. Fraudulent wills are apt to be punctiliously executed. 4 Burn. Ecc. L. 84. The greatest judges in England had stated that the law of testaments had been taken from the civil law, therefore that law was applicable. In 2 Edens Ch. R. 254, the editor in a note says, that he could find no entry in the Register’s Books of the ease of Ashburnham & Bradshaw, which case alone stands opposed to all the cases in the English Books, and that case was decided by Lord Northington, who never did regard authority.
   Cuma per

Nott, J.

The question submitted to us in this case, was decided at our last sitting in Columbia, in the case of Houston vs. Houston, 3 M’Cord 491. That case was submitted to the Court without argument, and the opinion made up and delivered in the hasty manner in which many of our decisions necessarily must be amidst the pressure of business under which we labor. It was however founded on what was thought to be a very familiar principle, to wit, that all the personal estate which a man has at the time of his death passes under his will, although acquired after the time of its execution— from whence it was concluded that the will must be considered as having existence only from the time of the death, and not from the time of its execution ; and if it is to take effect from the time of the death only, it must be executed according to the provisions of the law at that time. In support of that construction of the act, we not only have the unanimous opinion of this Court, but the concurring opinions of two Ordinaries,, and two of the Circuit Judges on the same-point. We have, nevex-theless, upon the solicitation of the counsel for the appellant, submitted to an argument with a view of giving the question a further consideration, and to afford an opportunity of looking into the authorities upon the subject. And I am now authorised to say, that the argument has produced no change in the opinions of this court. With regard to those passages from tbe Civil Law and the Code Civile, which have been relied on, even if they admit of the construction which the counsel supposes, they cannot affect the question. We never resort to the civil law as authority. It may be recurred to for the purpose of illustrating those principles of the common law which have been derived from that source, and no further. And no case has been adduced from any of the books, either in law or equity, in support of the doctrine contended for on the part of the appellants, which is thought applicable to the case now under consideration. The strongest is perhaps that of Downes vs. Townsend, and others, Ambler 290, where Lord Hardwicke is reported to have made use of the following observation : “ The general rule as to testaments is, that the time of the testament, and not the testator’s death is regarded.” But that dictum must be taken with reference to the particular question to which it was applied. Lord Hardwicke was looking for the intention of a testator as expressed in a specific bequest, contained in a testamentary paper. It was the intention alone of which he was speaking, and not of the execution nor of the time from whence it would take effect. He said, and undoubtedly said correctly, that the general rule was, the time of the testament and not the death of the testator. We must suppose that when a person is disposing of property he must mean the property which he possesses at the time, because he cannot know what property he may in future acquire. When therefore, a person makes a specific bequest, he must necessarily refer to some specific thing then in his power or possession. And yet in the same case, Lord Hardwicke says, where the legacy is universal, as of all a man’s goods, or even where it is specific, if of property in its nature fluctuating, as a flock of sheep, it must relate to the death. Several cases have been quoted from Modern Reports, but the one principally relied on is Ashburnham vs. Bradshaw, 7 Modern 239. That was a devise made before the statute of George II. avoiding devises to charitable uses, and the testator died afterwards. It was referred to the judges to determine whether the will would still take elfect, or whether it was revoked by the statute: and ten out of twelve of the judges held that the land would still pass under the will, but they gave no reason for their opinions. Besides that was a devise of real estate; and a distinction has always been made between a will of real and personal estate. One which all the books concur in is, that a will of real estate carries only the land which the devisor has, at the time of making the will, but that a testament of personal estate carries all the goods which he has at the time of his death, although he may have acquired them after making the will. And that distinction is relied on by Lord Chancellor Northington, in the case of the Attorney General vs. Hartwell, Ambler, 451, where a will of personal estate came under his consideration., depending upon the construction of the same statute of George II. In speaking of the case of Ashburnham vs. Bradshaw, he says, “ That was the case of real estate, but as to personal estate it admits of a different consideration.” And in that case he held that the will was rendered void by the statute. We are told in the argument that the decrees of Lord Northington are not to be relied on as authority.— We cannot consider the. single decision of any English judge as conclusive authority; but it would be very difficult to fix a scale by which to ascertain the exact degree of credit to which they are respectively entitled. We can only allow them the weight to which we think they are entitled according to the notions we may entertain of the general principles of law to which they relate. It is said in Ambler 451, that when the Lord Chancellor first started the distinction between real and personal estate, as affecting the question, it was a surprise upon the counsel on all sides: from whence it is argued that they were surprised that such a distinction should be made. But I apprehend that all that wao meant by that observation was that the distinction had not occurred to the counsel, and not that it was so new or extraordinary that they were surprised to hear it from the bench. But Mr. Eden, who has collected the decisions of Lord Northington from his own original manuscripts, does not find that remark contained in this case. He has indeed introduced it into his report, but it is inclosed in a parenthesis and given upon the authority of Ambler alone, and not of the Chancellor, 2 Eden 284. But the distinction is as well settled as any rule of law whatever, and goes to reconcile all the cases on the subject. It may be an arbitrary one, but it is not more so than many of the distinctions between real and personal property, which are nevertheless obligatory upon this Court. It is also to be observed that Modern Reports are not of the highest authority. Of the 6th Volume, it is said that it is “ a book of no repute;” the 8th a miserable bad book; the 10th of little authority; and the 11th a book of no authority; and these are the opinions of Lord Hardwicke, Lord Mansfield, and Judge Buller; and if I were under the necessity of expressing an opinion on the case of Ashburnham vs. Bradshaw, I should feel much disposed to concur with Lord Chancellor Northington, “ that a great deal might be said against the determination.” But without resorting to any other authority than the act itself, I should come to the same conclusion. It will hardly admit of any other construction. It declares that “ from and after the first day of May next, all wills or testaments of personal property shall be executed in writing, &c. or else they shall be utterly void and of no effect.” It does not say, wills which shall be made after such a time, for then perhaps it might have excluded those which had been previously executed, though the testator had died afterwards; but that all shall be void which are not thus executed. It appears as if time was allowed for the purpose of affording an opportunity for those who had made their wills to alter them so as to render them conformable to the provisions of the act; and would it not appear repugnant to all our notions of consistency that a will executed before the passage of the act should pass property acquired afterwards, though not executed according to the provisions of it? I think the Case of Houston vs. Houston not only consistent with the general principles of the law, but with the express letter of the act, and that the motion in this case must be refused.

New Trial Refused.  