By the Court.
McDonald, J.
delivering the opinion.
The principal question presented in this record is, whether the provision in the will, that on the death of the natural daughter of the testator without issue, the negroes given to her in the will, are to return to the estate of the testator, to he divided among his heirs at law, is a legal provision.
It is unnecessary to go into the enquiry whether the terms of the will declaring a reversion of the negroes to testator’s estate in the contingencies mentioned, would create an estate fail, if used in a will of lands in England, for the purpose of ascertaining whether the limitation over to the heirs at law of testator is void, under the statute of this State. The Act of 17th February, 1854, settles that. The gift over is good under that Act, the legal import of the terms used being now a definite failure of issue.
It is argued that the Act referred to was passed after the will was made, which bequeathed the property to the intestate of plaintiff in the Court below, and that that Act does not change the rule of construction in regard to wills already made. A will cannot take effect until the death of the testator. It is, in fact, no will before. It passes and vests no right prior to the death. Such is not the case with other instruments made and executed for a consideration? they always pass an interest of some sort, and those instruments, whatever they may be, are irrevocable, except with the consent of the parties to them. A will may be made and. signed with all the formalities required by the law, and it may be then delivered over to one of the persons named jas a legatee therein, and yet it passes no right, and is not binding upon the person who makes it, he being still in life. He may change or annul it at his pleasure. The Legislature no doubt, intended to change a legal rule of construction immediately, when the change could not interfere with vested rights. The old rule it considered as, in many cases, disappointing the intention of testators and others, limiting over estates, when no corresponding public advantage was gained by its enforcement. Whether they took a correct view of the subject cannot be determined but by the practical operation of the new rule. But in construing the Act we must have respect to the object of the Legislature. Mr. Dwarris quotes a valuable rule from a distinguished author on this subject, who says that “ that must be the truest exposition of a law, which best harmonizes with its design, its objects and its general structure.”
To give this Act the interpretation, that the rule, which it prescribes, should apply to wills and other instruments, ■which could have no effect whatever in passing a right from one person and vesting it in another, (although signed and delivered before the Act) prior to the passing of the Act, •would seem to harmonize best with its design and object. Indeed, transpose half a dozen words, and we would have, perhaps, a correct reading of the statute, and one that would harmonize with the Legislative intention. Let it be read thus : “ That after the passage of this Act, all wills, testaments and other instruments made and executed, by which property, either real or personal, is limited over, so as to vest in some other person, &c.”
The words “ made and executed” would not refer to the time of the passing of the Act, but to the substance of the will or instrument; that if it should be so made and executed as to limit over property, real or personal, so as to vest in some other person, &c.; and the words “after the passage of the Act,” would refer to the time at which the new rule of construction would go into effect, viz. immediately.
But allowing the words to remain as the Legislature has placed them, and we think it cannot apply to wills made by testators who died after the passing of the Act.
This cause was argued before this Court exclusively on the claim set up by the complainants to the negroes and their hire, without reference to the legacy of three thousand dollars, and upon that view, excluding the pecuniary legacy from our consideration, we reverse the judgment of the Court below.
Judgment reversed