
    SUPREME COURT — IN PROBATE.'
    In the Matter of the Proof of the Will of Nanino, deceased.
    The provisions of Section 1474 of tlie Civil Code, limiting the time for the probate of wills, have no reference to the wills of testators deceased prior to the passage of that law, and the limitation therein imposed, does not apply to them.
    At Chambers, before Chief Justice Allen and Justice Davis.
   The will of Nanino was presented for probate before Mr. Justice Davis, on January 21st, a. d. 1865 ; it was dated and executed in December, 1855, and it appeared in evidence that the testator died on the 6th of January, 1856.

Wherefore the Court ruled, that as more than five years had elapsed since the death of the testator, and since the passage of the law, the will could not be admitted to probate, as by the Civil Code, “No written will shall be allowed to be proved after the expiration of five years from the death of the testator.”

From this decision the petitioners appealed.

It is contended that the provisions of the Civil Code do not operate as a limitation, as by its terms it does not apply to the case at bar, and if it did it would have a retrospective operation, which is interdicted by express provisions of the Code.

Prior to the statute referred to, there had been no limitation to the admission of wills to probate.

. Mr. Justice Tenny in the case of Givin vs. Mann, 27 Maine Reports, p. 223, says that “no statute is to be held retrospective, as in violation of any constitutional provision, when it affects rights, unless such shall be the necessary construction.” What is the necessary construction of the statute in question ? Admitting that the Legislature had the power to pass 9, statute of limitation as to the proof of wills made prior to its date, does this statute in its terms so declare ? If it applies to the past, it would be very unequal in its operations, as the time of limitations is computed from the date of application for probate retrospectively to the death of the testator. In some cases it might be a day, and in others five years, or any time intermediate. Had the Legislature intended that the act should apply to wills where the testator had deceased, there would doubtless have been inserted some provisions giving the same term of five years or some precise time for that class of wills presented for probate. In the statute of limitations applicable to personal actions, the legislation has been as follows, viz :

On the 1st day of August, 1853, an Act took effect, limiting the time of commencing personal actions, with the express provision that it was not to apply to any action commenced, nor to any causes where the right of action shall have accrued before the time when this Act took effect as a law but the same shall remain subject to the law now in force. By the Civil Code, there is a provision that in all cases where the right of action shall have accrued prior to the 1st day of August, 1853, no action shall be maintainable, unless the same shall be commenced before the 1st day of August, 1859. In this legislation, as much time has been given to the debts contracted prior to 1853 as those contracted subsequently. The provisions in question have reference to wills made subsequent to the passage, and that in its terms it has no reference to the past, and therefore, whatever the rule might be, had the limitation been made applicable to them, as it was not, it only applies to the future, and therefore does not impose the limitar tion on the will in question. There were other points presented' to the Court, in a very creditable manner by the counsel for petitioner, but it becomes unnecessary to consider them, as the judgment of the Court of Probate is hereby reversed, and the case remanded to said Court for hearing.

December, 1865.  