Card v. Alexander

| Conn. | Jan 11, 1881

Carpenter, J.

This is an application for a judicial construction of the will of Luther D. Alexander. The second clause of the will, which is the one in question, reads as follows:— ‘

“I give and bequeath to my wife, Amelia F. Alexander, the sum of four hundred dollars annually, to be paid to her annually by my executor hereinafter named out of the income of my estate during her natural life; said annual payment of four hundred dollars to be in lieu of and in full discharge of all rights, claims or demand of dower on my estate; and if she shall refuse to accept the same in lieu of dower, then she shall have and be entitled to have only her right of dower in one third of my real estate.”

The will bears date and was executed in March, 1873. In August, 1874, Luther D. Alexander was duly divorced from Amelia F. Alexander on his own petition, and died on the first day of March, 1879, leaving two children his heirs at law.

The question now presented for our consideration is, whether the second clause in the will was revoked by the divorce.

We. think the bequest is absolute. The words “my wife” are descriptive of the person, and do not import a condition that if she survives him' she shall remain his wife until his death. The words which follow do not change the meaning and have little force. They simply express the testator’s will that she shall not have the legacy and dower, instead of leaving it to the implication of law to the same effect. That was more satisfactory to him, and was doubtless all that he intended.

It is a will; we are considering and not a contract. A bequest requires no consideration to support it. Hence the suggestion that the relinquishment of dower was in the nature of a consideration for the bequest has no special force. It is true that by accepting the bequest she would thereby have relinquished her right of dower if she had had such right, and by electing to take dower she would have waived her right to the bequest; but that does not make the one, in a legal sense, a consideration for the other. Motives or reasons for doing an act are quite distinguishable from a legal consideration essential to the validity of an act.

The counsel for the heirs however insist that she must not only be willing but able to relinquish her right of dower; that is, that she must actually have such right at the time of her husband’s death. No such condition is expressed in the will, and the words used do not imply one. They afford slight if any evidence that such a condition was in his mind. If he had intended it apt words to express such an intention would doubtless have been employed. In the absence of such words we must infer that he had no such intention.

But it is contended that the divorce by operation of law revoked this bequest. No case is cited in support of this position, and we are not aware that any exists. It may be true that the divorce divested the wife of all those executory property rights which had no basis but the coverture; but that hardly reaches this case, for here the right rests mainly, not upon coverture, but upon the will; and it cannot be said that coverture was the sole motive or inducement to the will. After that was taken away it still remained true that she had been his'wife, and that she was the mother of his children. It is hardly credible that any man of ordinary sensibilities would desire to leave her destitute. Add to this the further facts, which exist in this case, that the testator was possessed of a large estate, that the provision made for the wife was a mere pittance, and that he lived nearly five years after the divorce making no change in his will, and the conclusion is well nigh irresistible that he did not intend to deprive his former wife of the provision he had made for her. There is not therefore sufficient reason for presuming that the testator intended by procuring the divorce to revoke the legacy to her; and these considerations are cogent reasons why we should not hold, as matter of law, that the divorce revoked the legacy.

Moreover the analogies of the law, so far as there are any, are against it. The death of the wife during the lifetime of the testator defeats the legacy, because it then lapses as in ordinary cases. The dissolution of a corporation legatee has the same effect. In these cases the objects of the testator’s bounty cease to exist before the will takes effect. In this case she survives and is capable of taking. A more analogous case is that of marriage; and it is now well established that marriage alone will not revoke a will previously made. In order to have that effect there must be coupled with it the birth of a child or children.

We think the- second clause of the will is operative, and the Superior Court is so advised.

In this opinion the other judges concurred.