49 Vt. 236 | Vt. | 1877
The opinion of the court was delivered by
The probate of this will did not at all settle what property should pass by it. The statute, Gen. Sts. 379, s. 20, provides that “ the probate of a will of real or personal es
But neither when the will was made, nor when she died, had any act been passed, authorizing femmes covert to make wills of personalty; and, as they would not be included in the general words of the statutes relating to such wills, any more than they would be in like words relating to wills of lands, she had the same and no more power by will over her personal estate than she had at common law. By that law, however, there was no presumption that femmes covert lacked mental capacity to make wills, for they could dispose of property over which their husbands had no control as well as femmes sole ; but they lacked full and independent power over that which their husbands had the right to control. As was said by Barrett, J., in Morton v. Onion, “ The change of condition effected by marriage, as that expression is sometimes used, derives all its significance, as well as its operative force as a revocation of a will, from the fact that peculiar rights accrue to the husband in respect to the property owned by the wife at the time of, or coming to her during, coverture.” These peculiar rights that accrue are, that the marriage places all the personal property held by the wife in her own' right and not limited to her separate use, within the reach of the husband, .so that he can take it to himself if he pleases, and whether he does take it or not, by his right to take it he has power to control its disposition, so that the wife is without the full control and freedom of choice about the disposition of the property that is necessary to the making a valid will. As was said by Richardson, C. J., in Marston v. Norton, 5 N. H. 512, “ She is under a civil disqualification arising from want of free agency and not from want of judgment.” Norse and Kembling, 4 Co. 60; Swinb. pt.2, IX; 2 Burn’s Eccl. Law (ed. 1763), 507; Hodsden v. Lloyd, 2 Bro. Ch. 534; Morse v. Thompson, 4 Cush. 562; Mod. Prob. of Wills, 6. And in this case, although the will was made before marriage, and while the testatrix had full power over the disposition of all her property, — as there was no placing the property to her separate use, and it was not so held by her in any way, — all her personal property became, by the marriage, so situated that the
Although, according to this result, there is a large part of the property of the testatrix that does not pass by the will, and would ordinarily be subject to administration by itself, still, as the executor has administered upon that part as well as upon the rest, and the whole is ready for distribution to those entitled to it, there is no occasion for any other administrator or further administration ; the distribution can properly be made upon the administration already had. Hays v. Jackson, 6 Mass. 152. And although the judgment of the County Court, decreeing distribution of the,whole according to the will, must be reversed, as, apparently, all the facts upon which distribution is to be made are upon the record here, according to the later practice in this court, final judgment, making distribution as the County Court ought to have made it, is to be rendered here.
The will, being operative on the real estate, would carry that to the devisee; and being revoked by the marriage as to the personal estate, would leave that to go to the heirs at law. The real estate appears to have been converted into money: but this is presumed to have been regularly done under the authority of the Probate Court, for the benefit of those interested, and the avails are to go where the realty would have gone. Gen. Sts. 395, s. 38. The facts show that Jonathan Blake and Hannah Morton are the only heirs at law, and clearly all the personal property is to be decreed to them. Thus far there is no question about the distribution. But it remains to be determined who is the devisee or who are the devisees of the real estate Or, as the will in respect to personalty was revoked .by the marriage, it is necessary to determine what legacies were revoked. There can be no question but that the specific legacies of personal chattels to William Bean and Hannah Morton were revoked. The real question is concerning the bequest of eight thousand dollars to the American Missionary Association. If that, under the circum
According to this rule, as the personal assets were ample, this was a bequest of personalty, and was subject to revocation by revoking so much of the will as related to personal property, the same as the other bequests of personal property were. This being the case, the suggestion that there was no personalty that passed by the will to satisfy it, is of no force, for the legacy being revoked, there is no occasion to look for property of any class to satisfy it.
Further as to this question; the words of the will are significant. There is no mention of realty in connection with this
This is according to the English rule relating to marshalling assets where lands have been devised to charitable uses not authorized by law. There the unauthorized devise was left to fail by itself, without marshalling personal assets that might be lawfully bequeathed to such uses in favor of the devisee. Toller Exrs. 423 ; 2 Redf. Wills, 788; Makeham v. Hooper, 4 Bro. Ch. 153.
Judgment of County Court reversed. And upon the agreed statement of facts, the sum of $11,927, avails of real estate, with, its accumulations, if any, is decreed to the Congregational Society at Milton Ealls, for its own uses and purposes forever; and the residue of the estate to Jonathan Blake and Hannah Morton.
To be certified to Probate Court.