lated law, and are designed to operate as checks and restraints upon fraud and injustice. A construction, which would give to the fraudulent importer all the chances of gain from success, and exonerate him from the contingencies of loss, would be a great discouragement to rectitude and fair dealing. We are satisfied that the existing laws relating to exportations, with the benefit of drawback, do not apply to relieve the person who has incurred, by an undervaluation of his import, this additional duty from the payment of any portion of it. Our conclusion is, there is no error in the record, and the judgment of the Circuit Court is affirmed. ORDER. This cause came on to be heard on the transcript of record Circuit isee. After the execution of his will, he acquired the lands in controversy, and died in August, 1851. The lands which he purchased in 1842 did not pass to the devisee, but descended to the heirs. The cases upon the subject examined. decide the precise point in question and those in which an opinion is expressed upon it, incidentally. veyed by a deed, was the same with the name given in an early patent; that it had long been held by the persons under whom the party claimed; and that there was no proof of any adverse claim, was sufficient to warrant the jury in finding that the land mentioned in the deed was the same with that mentioned in the patent. A distinction is to be made between cases which Evidence that the name of the tract of land, con The lessee of the plaintiffs having claimed, in the declaration, a term of fifteen years in three undivided fourth parts of the land, and the judgment being that the lessee do recover his term aforesaid yet to come and unexpired, this judgment was correct. of error from the the United States for the District of Maryland, TIS case came up by writ of states for the District of Maryland. It was an action of ejectment brought by the defendants in error, as heirs of Michael B. Carroll, to recover three undivided fourth parts of all of three several tracts or parcels of plantable land, called, for the first of said three tracts, "Black Walnut Thicket" and "Content," contiguous to each other, lying and being in Prince George's County, in the State of Maryland, containing 700 acres, more or less; and called, for the second of said three tracts, 275*] *JANE M. CARROLL, Plaintiff in "Addition to Brookfield," situate, lying and Error, v. LESSEE OF GEORGE W. CARROLL, DE ROSZ CARROLL, ROBERT D. CARROLL, CHARLES W. CARROLL, JOHN M. MARTIN AND AMERICA, HIS WIFE, AND JOHN FORD AND MARY, HIS WIFE. Will-after-acquired lands did not pass by in Maryland. By the common law of Maryland, lands of which the testator was not seised at the time of making his will, could not be devised thereby. In 1850, the Legislature passed the following Act: Sec. 1. Be it enacted, &c., That every last will and testament executed in due form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will. Sec. 2. That the provisions of this Act shall not apply to any will executed before the passage of this Act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death, should thereby pass. Sec. 3. That this law shall take effect on the first day of June next. In 1837, Michael B. Carroll duly executed his will, making his wife Jane his residuary legatee and dev NOTE. Obiter dicta. An obiter dictum is an opinion expressed by the court, but which, not being necessarily involved in the case, lacks the force of an adjudication. 1 Bouv. Law. Dict., 476. According to the more rigid rule, an expression of opinion, however deliberate, upon a question however fully argued, if not essential to the disposition which was made of the case, may be regarded as a dictum, or an obiter dictum. But it may be difficult to see why the opinion of the court is not as persuasive on all points which were so involved in a cause that it was the duty of counsel to argue 66 being in Prince George's County aforesaid, containing 150 acres, more or less; and called, for the third of said three tracts, Lot No. 1," being part of a tract of land called Brookfield, containing 450 acres, more or less. which, after some legacies, he devised all the *Carroll made a will in 1837, in [*276 rest of his property, real, personal and mixed, to his wife, Jane M. Carroll. In 1850 the Legislature of Maryland passed a law, which is recited in the syllabus at the head of his report, and also in the opinion of the court. In August, 1851, Carroll died, upon which the present action of ejectment was brought by three of the four branches of his heirs, to recover three undivided fourth parts of the lands mentioned in the beginning of his report. The claim of the two latter tracts did not appear to have been prosecuted, but the controversy turned exclusively upon the title of the plaint iffs below to Black Walnut Thicket" and Content." Upon the trial in the Circuit Court the plaintiffs offered, in evidence, to support their title: dated at the City of St. Mary's on the 29th 1. The patent for "Black Walnut Thicket," September, 1680, and the patent for "Content," dated on the 10th of August, 1753. 2. A deed from W. B. Brooks and others, to them, and which were deliberately passed upon by the court, as if the decision had hung upon one controlling point. 1 Abbott, N. Y. Dig., pref. IV.: see 17 Serg. & R., 292; 1 Phill. Eccl., 406; 1 Erg Eccl., 129; Ram. Judgm., c. s. p., 36; Willes, 666; 1 H. Bl., 53-63; 2 Bos. & P., 375; 7 Penn., 287; 3 Barn, & Ald., 341; 2 Bingh., 90. [In writing head-notes, and indexes of cases, the decisions would seem to lose much of their value, if the points upon which the court express a delib erate opinion were not noticed, although not essential to the disposition of the case, and not the leading and controlling grounds of the decision.-E4] * 3. The plaintiff then proved possession, by Carroll, of the parcel of land described in the deed to him, from the date of that deed until his decease; and also proved possession of the same by those under whom Carroll claimed from 1809. Upon this instruction the jury found the following verdict: Michael B. Carroll, dated on the 27th of January, 1842, which purported to convey all those tracts, parts of tracts, or parcels of land lying Verdict. Who being impaneled and sworn and being in Prince George's County, called to say the truth in the premises, upon their "Black Walnut Thicket" and "Content," con- oath do say, the defendant is guilty of the trestiguous to each other, and contained within the pass and ejectment in the declaration mentionfollowing metes and bounds, courses and dis-ed upon the tracts of the land therein stated, tances, namely, * (these were not iden- called Black Walnut Thicket and Content, in tical with those of either patent). manner and form as the said lessee, John Doe, complains against her, and which is contained within the metes and bounds, courses and distances, set out and described in the paper hereto annexed, and made for that purpose apart of this verdict, being a deed from Walter B. Brooks, of Prince George's County, and State of Maryland, Alexander Middleton and Elizabeth A. Middleton, his wife, of Charles County, and said State, to Michael B. Carroll, dated the 29th January, eighteen hundred and forty-two; and they assess the damages of said John Doe, lessee, by occasion of the trespass and ejectment aforesaid at $1.00; and as to the other trespasses and ejectment *upon the [*278 other tracts or parcels of land in said declaration, also mentioned, they find that the said defendant is not guilty. (Then followed the deed.) Upon which verdict the court entered the following The defendant, by her counsel, then prayed the court to instruct the jury that there was no sufficient evidence in the cause from which the jury could properly find that the land embraced in said deed, from said Walter B. Brooks and others, to said Michael B. Carroll, offered in evidence by the plaintiffs, is the same land, or parcel of the same lands, embraced in the said patents or in either of said patents. But the court refused said prayer, being of opinion that there was evidence in the cause proper to be left to the jury to determine whether the said land, mentioned in the deed, was the same, or part of the same, granted by the said patents. To which opinion of the court, and to the refusal of said court to grant the aforesaid prayer of the said defendant, the said defendant, by her counsel, prayed leave to except, and that the court would sign and seal this first first bill of exceptions, according to the form of the Statute 277*] in such case *made and provided; and which is accordingly done this 4th day of December, 1852. R. B. TANEY, [SEAL.] JOHN GLENN. [SEAL.] Defendant's second exception. The defend ant then offered in evidence the last will and testament of Michael B. Carroll, dated on the 10th of September, 1837, by which, as has been before mentioned, he made his wife, Jane, his residuary devisee. Thereupon, upon the prayer of the plaintiff, the court gave the following instruction to the jury: If the jury find that the plaintiff, and those under whom he claims, have possessed and held the land called Black Walnut Thicket and Content, described in the deed from Walter B. Brooks and others to Michael B. Carroll, dated 29, 1842, and that the said Michael B. Carroll died seised thereof August 30, 1851, and the lessors of the plaintiffs are his heirs at law, and that the said land is the same, or part of the same land mentioned in the patents for Black Walnut Thicket and Content, offered in evidence by the plaintiffs, then the plaintiffs are entitled to recover the land mentioned in the said deed, and that the same did not pass to the defendant by the said will of Michael B. Carroll. To the giving of which said instruction the defendant, by her counsel, prayed leave to except, and that the court would sign and seal this second bill of exceptions, according to the form of the Statute in such case made and provided; and which is accordingly done this 4th day of December, 1852. R. B. TANEY, [SEAL.] Judgment: Therefore it is considered by the court here, that the said lessee, as aforesaid, do recover against the said Jane M. Carroll his term aforesaid yet to come and unexpired, of and in the said tracts of land called "Black Walnut Thicket" and "Content," with the appurtenances in the district aforesaid, wherein the said Jane M. Carroll is, by the jurors above, found to be guilty of the trespass and ejectment aforesaid; and the sum of $1.00 his damages by the said jurors in manner aforesaid assessed; and also the sum of by the court now here adjudged unto the said lessee for his costs and charges by him about his suit in this behalf expended, and that he have thereof his execution, &c. The case was argued by Messrs. Schley and Alexander for the plaintiff in error, and by Messrs. Nelson and Johnson for the defendants in error. Before stating the points made by the counsel for the plaintiff in error, it is proper to mention that at December Term, 1853, of the Court of Appeals of Maryland, a case came before that court, where a bill was filed by the executors of Mrs. Carroll (who died in 1853) against the administrators de bonis non of Mr. Carroll and his heirs at law. The question was whether an injunction ought to be granted to prevent the sale of the negroes of Michael B. Carroll, which sale had been ordered by the Orphans' Court of Prince George's County. In the opinion given by the Court of Appeals, 'in that case, it was held that the will of Mr. Carroll fell within the provisions of the Act of the Legislature of Maryland, and consequently that the land was devised to his wife. The points on behalf of the plaintiff in error, in this court, upon the construction of the Statute, were, 1. That (apart from the controlling effect of the decision of the Court of Appeals of Maryland upon the said Act, and in relation to this very will) the said Act, upon its true construction, does include the said after-acquired land. 2. That whatever might be the decision of this court, if the question were undecided, yet the decision of the highest tribunal in Maryland, upon a statute of that State, will be respected by this court as a true and binding construction thereof. On the 1st point, the following authorities were cited: Broom's Legal Maxims, 246; Fowler v. Chatterton, 19 Eng. Č. L., 75; Culley v. Doe, dem Taylerson, 39 Ib., 307; Freeman v. Moyes, 28 lb., 103; Angell v. Angell, 58 lb., 328; Brooks 279*]v. *Bockett, lb., 855; 64 lb., 121; Cush ing v. Aylwin, 12 Met., 169; Pray v. Waterston, lb., 262; Tuck & Magrudur v. Carroll, MS. Court of Appeals of Maryland, at December Term, 1853. * "To my dear wife, Jane, I give and [*280 bequeath all my slaves, and do request that none of them may be sold or disposed of for the payment of my debts, but that provision shall be made for discharging the same out of the other personal property and effects which I shall leave at the time of my death. All the rest and residue of my property, both real, personal and mixed, I give, devise and be queath to my said wife, Jane, who I do hereby constitute and appoint sole executrix of this my last will and testament, enjoining it upon her nevertheless to consult and advise with the said John B. Brooks, as occasion may require, respecting the settlement of estate, and make him a reasonable compensation for the same out of the funds hereinbefore bequeathed to her; and I do hereby revoke and annul all forre-mer wills by me heretofore made, declaring this, and none other, to be my last will and testament." On the 2d point: Green v. Neal, 6 Pet., 291; and succeeding cases to the same point. The counsel for the plaintiff in error also ferred to the following error: The plaintiff below only claimed three undivided parts of the land described in the declaration. By inadvertence the court's instruction asserted, upon the hypothesis of the prayer, the plaintiff's right of recovery of the entirety, and the verdict and judgment were conformable to the instruction. The points on behalf of the defendant in er ror, were: First. That the prayer of plaintiffs in error itself conceded that there was evidence from which the jury might find, as they did find, that the lands were the same as were included in the patents, and that it should therefore have been rejected, because where there is any evidence the jury is to decide on its sufficiency and not the court. Second. That the evidence before the jury not only tended to establish the facts, but was conclusive. Third. That the will of Michael B. Carroll did not embrace the lands recovered, because they were acquired after its date; that this was the settled law of Maryland at that date, and was, at the time of his death, also the law as far as wills executed at such a time, when the testator died when this testator died-such a will not being included within the Act of Maryland of 1849, ch. 229, passed the 22d of February, 1850. Before that statute, after-acquired real estate did not pass. (Kemp's Executors v. McPherson, 7 Harr. & J., 320.) Statutes are not to be construed to have a retrospective operation. (Prince v. United States, 2 Gall., 204; United States v. Schooner Peggy, 1 Cranch, 103; Butler v. Boarman, 1 H. & McH., 371.) Mr. Justice Curtis delivered the opinion of the court: This action of ejectment was brought in the Circuit Court of the United States for the District of Maryland, to require three undivided fourth parts of three tracts of land lying in Prince George's County, in that State. Both parties claimed under Michael B. Carroll; the plaintiffs as heirs at law, the defendant as devisee. It appeared at the trial, in the court below, which was had at the November Term, 1852, that on the 10th day of September, 1837, Michael B. Carroll duly executed his last will, the material parts of which are as follows: It further appeared, that after the execution of this will, Michael B. Carroll acquired other lands, and the plaintiffs, as heirs at law, claimed to recover three undivided fourth parts thereof as undevised land. The defendant insisted that these, together with all the other lands of the testator, passed to her under the residuary clause of the will. She admitted that, by the common law of Maryland, lands of which the testator was not seised at the time of making his will, could not be devised thereby, but insisted that an Act passed by the Legislature of Maryland, on the 22d day of February, 1850, so operated as to cause this will to devise the lands to her. That Act is as follows: "Section 1. Be it enacted by the General Assembly of Maryland, That every last will and testament, executed in due form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will. Section 2. And be it enacted, That the provisions of this Act shall not apply to any will executed before the passage of this Act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real or personal estate which he or she may own at his or her death, should thereby pass. Section 3. And be it enacted. That this law shall take effect on the first day of June next." It is argued by the counsel for the devisee, that the first section of this Act was intended to prescribe a new rule of construction of wills, and to fix the time when the courts should begin to apply that rule; that new rule being. that wills of the *realty should be [*281 deemed to speak at the time of the death of the testator; and the time when the courts should begin so to construe them, being the 2d day of June, 1850; and that the law should be so read as to mean, that after the 1st day of June, 1850, wills should be deemed to speak as if executed on the day of the testator's death, unless a contrary intention should appear. To this construction there are insuperable objections. It would change the legal operation not only of existing wills, but of those which had already taken effect by the death of testa tors. It would make the same will, if offered of construction of wills. They are to be deemed in evidence on the 2d day of June, operative to to speak as of the time of the death of the pass after acquired lands to a devisee, though testator; but power is reserved to him to set if offered in evidence on the next preceding aside this rule by manifesting in his will an inday it would be inoperative for that purpose. tention not to have it applied. The real subThe object of the whole law concerning wills, stance and effect of the second section is to enis to enable the owners of property reasonably able certain testators to pass their after-acquired to control its disposition at their decease. To lands by expressing an intention to pass them. cause their real intentions and wishes to be so By force of the first section, the law preexpressed, and their expression to be so pre- scribes a rule of construction, which a testator served and manifested that they can be as- may set aside. By force of the second section, certained and carried into effect, are the chief a testator may manifest an intention to have his purposes of legislation on this subject. So to will speak as of the time of his decease, and so interpret an Act concerning wills as to cause adopt that rule of construction. It thus appears those instruments to operate without regard to that the office of the second section is not to take the intent of the testator, having one effect to certain cases out of the operation of the first day and another to-morrow, would not only be section, but to prescribe another and substanarbitrary and a violation of the principles of tially different rule of law for those cases. It is natural justice, but in conflict with what must true, negative language is used, which leaves be presumed to have been the leading purpose the law open to the suggestion that the proof the Legislature in passing the law, the better vision of the Act would have applied to such to give effect to the intent of the testator. To wills if the negative words had not been used. induce the court to believe the Legislature in- But it must be remembered that this is only tended to make this law retroactive upon a will an inference, the strength of which must dethen in existence, and cause it to pass after-pend upon the subject matter of the provisions acquired lands without any evidence that the testator desired or believed that it would do so, and to fix a particular day, before which the will should not so operate, and on and after which it should so operate, such intention of the Legislature must be expressed with irresist ible clearness. (Battle v. Speight, 9 Ired., 288.) It is very far from being so expressed in the first section of this Act. On the contrary, its natural and obvious meaning is, that wills executed after the 1st day of June, 1850, are the only subjects of its provisions. The words "after the 1st day of June next" refer to and qualify the words "executed in due form of law," which they follow, just as in the same section the words "on the day of the death of the testator" refer to and qualify the word "executed." In the former case they in dicate the time when the will shall be deemed to have been executed; in the latter, the period of time when it was actually executed. In our opinion, the first section of this law is 282*] free from ambiguity, *and applies only to wills executed after the first day of June, 1850; and as this will was executed before that day, it is not within this section. Nor is it within the second section of the Act; because that applies only to cases in which the testator having executed his will before the passage of the Act, might die before the first day of June then next, and this testator survived till after that day. It has been supposed, however, that although the first section of this Act is free from ambiguity standing by itself, and ought to be so construed as to apply only to wills executed after the 1st day of June, 1850, yet that the second section shows that wills executed before that day were intented to be included in the first section. The argument is that the second section excepts out of the operation of the first section certain wills executed before the 1st day of June, 1850, and thus proved that the first section embraces wills executed before that day. This argument requires a careful examination. To appreciate it, we must see clearly what are the nature and objects, as well as the form of the two enactments. The first prescibes a new rule and the language employed in making them. If every part of the law can have its natural meaning and appropriate effect by construing this second section as an additional enactment, and if to construe it as an exception would affix to the first section a meaning which would be inconsistent with the great and leading purpose of the Legislature, and at the same time be arbitrary and unjust; and if, when viewed as an exception, *the case can, on no just prin- [*283 ciple, be distinguished from those left unexcepted, then manifestly it should not be construed as an exception, but as a substantive enactment, prescribing for the particular cases a new rule of law not provided for in the first section. We have already pointed out the consequence of holding the first section applicable to all wills. In addition to this it is worth while to inquire if the second section was designed to except certain cases out of the first section, what those cases were, and how they are so distinguished from the cases left unexcepted as to be proper subjects of exception. The proposition is, that the first section includes all wills whenever executed, and the second excepts only wills executed before the passage of the Act by persons dying after the passage of the Act, and before the 1st of June, 1851. Can any reas on be imagined why a will executed before the passage of the Act should be within the first section if the testator died the day before the passage of the Act, and out of it if he died the day after its passage? If there is any distinction between the two cases, it would seem the first case had the stronger claim to exemption from the effect of the new rule. Nor do we perceive any difficulty in so construing the two sections as to allow to each its appropriate effect, while neither of them violates any principle of natural right; the effect of the first section being to prescribe a new rule of interpretation for wills executed after the 1st of June, and the effect of the second being, to enable testators who had executed their wills before the passage of the Act, and who might die before the 1st of June, to pass afteracquired lands if they manifested an intention so to do. Cases of testators who should execute wills after the passage of the Act and before the 1st of June, or who should die after that day, having previous to that day executed their wills, are left unprovided for, either because it was thought that they would have sufficient time to conform their wills to this change of the law, or because their cases escaped the attention of the Legislature, as happened in Barnitz's Lessee v. Carey, 7 Cranch, 468; and Brewer's Lessee v. Blougher, 14 Pet., 178. The grat of Mr. Carroll and his heirs at law. the time specified by law for winding up the estate of her husband having elapsed. We have been referred to two decisions in the Supreme Court of Massachusetts, in which a retroactive effect was allowed to a statute of that State upon existing wills. They are Cushing the negroes as legatee, and not as executrix, ing v. Aylwin, 12 Met., 169; Pray v. Waterston, 12 Met., 262. But an examination of those cases will show that the interpretation put by that court on that statute was attended with none of the difficulties which beset the construction of the Statute of Maryland contended for by the counsel for the devisee. The law of Massachusetts did not enact a new rule of con284*] struction. *It simply enabled testators to devise after-acquired lands by plainly and manifestly declaring an intention to do so. The law could only operate in furtherance of the intention of the testator, and could never defeat that intent by applying to wills an arbitrary rule of construction. This distinction was pointed out by this court in Smith et al. v. Edrington, 8 Cranch, 66, in reference to a similar statute in Virginia; respecting which Mr. Justice Washington said, the law creates no new or different rule of construction, but merely gave a power to the testator to devise lands which he might possess or be entitled to at the time of his death, if it should be his pleasure to do so." Moreover the language of the Act of Massachusetts was broad, and general enough to include in its terms all wills which should take effect after the law went into operation. There was therefore nothing in the words, or the subject matter of the Act, to lead the court to a more re stricted construction. Still that court thought the retroactive effect of even such a law required some notice, and they vindicate the departure from an important principle in that case with some effort; and the reluctance with which it should be departed from, is well expressed by the Supreme Court of North Carolina, in Battle v. Speight, 9 Ired., 288, in construing a similar statute of that State. This last ground cannot avail. There is no allegation in the bill that a final account had been settled by her, and the bill shows that a large amount of debts remained unpaid, and that the creditors of the estate of her husband had commenced proceedings to secure their payment, which proceedings are still pending. In this claim of the bill we suppose but little confidence was, or is resposed by those who framed it; at all events, there is nothing in it. There is nothing in the facts of the case to justify the presumption that there had been a final settlement of the estate of Michael B. Carroll, and all his debts paid off; the truth is, the bill directly contradicts the facts out of which such a presumption could arise. It is contended on the part of the complainants, that the real estate and personal property, other than the negroes of Michael B. Carroll, ought to be applied to the payment of his debts before the negroes are resorted to. This may or may not be so: and in regard to it we pass no opinion, because the question is not before us in this case. This is not a bill filed on behalf of the negroes, but by the executors of Mrs. Carroll, and they must occupy the same position in regard to the creditors of Michael B. Carroll, who are represented by the administrators do bonis non, as she would have done had the bill been filed by her instead of by them. And if she were the party complainant, how would the case stand? Why, thus: Michael B. Carroll died in debt, leaving a will by which his real and personal estate is specifically devised and bequeathed to his wife. His creditors would have the right to proceed against his entire estate for payment; first, however, against We have also been referred to a manuscript the personal as the primary fund. Their rights opinion of the Court of Appeal of the State could not be affected by anything he might reof Maryland upon the effect of this will. It quest in his will; their claims would attach to appears that in November last the executors of his entire estate. He did not manumit his Mrs. Carroll, the devisee, who is deceased, filed slaves; and, moreover, this is not the case of their bill in the Circuit Court of Prince contribution and marshaling of assets between George's County, praying that the administrat different devisees and legatees, because here ors de bonis non of Michael B. Carroll might Mrs. Carroll was specific devisee and legatee, be enjoined from making sale of his negro and residuary devisee and legatee; she in fact, slaves. The heirs at law and the administra- with but trifling exception, took under the will tors de bonis non of Michael B. Carroll were the whole estate. Had she, immediately on ob made parties. The Circuit Court refused the taining letters of administration, manumitted injunction, the complainants appealed, the the negroes, it could not be pretended such Court of Appeals affirmed the decree of the manumission could have affected the rights of Circuit Court, and dismissed the bill. The the creditors of her testator; and it must be grounds upon which the court rested its de- obvious, if she could not do it by her act as excree will best appear from the following executrix, that she could not accomplish it by her tracts from the opinion: The bill is filed by the executors of Mrs. Carroll against the administrators de bonis non will. For these reasons we affirm the order of the Circuit Court refusing the injunction. |