5 N.H. 205 | Superior Court of New Hampshire | 1830
The question in this case is, whether a married woman can, with the consent of her husband, dispose of her real estate by a will ?
In ancient times, no lands or tenements were, by the common law of England, devisable by the last will of any person, except in particular places, by custom. Coke Litt. Ill, b, and note 1; Litt. sec. 167; Wright’s Tenures, 171 — 173 ; 6 Coke 17, Wild’s Case ; Cowper, 305.
And by the common law, as it was understood in the reign of Henry the second, a man’s goods were not wholly at his own disposal by will, but his wife and children had an interest in them, of which he could not deprive them by a will. The shares of the wife and children were called their “ rationabilis pars,” and the writ de ration-abili parte bonorum, was given to enforce the claim. 2 Bl. Com. 491 ; Fitz H. N. B. 284 ; Coke Litt. 176, b.
It seems to have been settled in very ancient times, that a married woman might, with the assent of her husband, dispose of her chattels by will. Bracton, 60 ; Moore, 339, Finch v. Finch; Cro. Car. 106, Johns v. Rowe ; Lovelass, 143—146.
But by the common law, a feme covert never could make a valid devise of land with or without her husband’s consent, to any person whatever. Godol. 301 ; Shep. T. 402 ; Com. Dig. “ Devise” H. 3 ; Lovelass, 96 ; 3 Johns. C. Rep. 523, Bradish v. Gibbs; 4 Mason, 443, Picquet v. Swan.
She was considered to be so entirely under the power of the husband, that she could, in no case, make, what
By the statute of 32 H. VIII. ch. 1, it was enacted, “ that all and every person and persons, having a sole estate or interest in fee simple, or seized in fee simple, in coparce-nary, or in common of any manors, lands, &c. shall have power to give, dispose, will, and devise by will, in writing or otherwise, by act executed in his life time all his said manors, &c.
The language of this statute was broad enough to include all persons. But it seems to have been thought by the courts of the common law, that, upon the construction of statutes, not the mere letter but the internal meaning and sense of the legislature was to be considered, and although this statute gave power to every person having land to devise it, yet it was thought that it could not have been the intention of the makers of the statute, that persons who were disabled by the common law to dispose of their lands by other consequences, should have the power to devise it; therefore, in expounding that statute, a married woman was considered as not comprehended under these general words. Powell on Devises, 93 — 95.
And as soon as an attempt was made in the ecclesiastical courts to establish the wills of married women, it was enacted by Parliament, that wills of lands by married women should not be taken to be good in law. 4 Burns, 46.
In Massachusetts, by a statute passed in 1692, it whs enacted, “ that every person lawfully seized of any lands &c. in his own proper right in fee simple, shall have power to give, dispose and devise, as well by his last will and testament in writing, as otherwise by any act executed in his life, all such lands, &c. Prov. and Col. Laws, 230. And the statute of 1783, cap. 24, contains a provision substantially in the same language. In the case of Osgood v. Breed, to which we have been referred by counsel, it was decided, by the supreme court of Massachusetts, that married women have not power under
Our provincial act of the 4 Geo. t, cap. 73, was copied verbatim, from the said statute of Massachusetts passed in 1692. Prov. Laws, 104.
The statute of February 3, 1789, enacted “ that every person lawfully seized and possessed of any estate in lands, &e., of the age of twenty-one years and upwards, and of sane mind, shall have power to give, devise, and dispose of the same, as well by his last will and testament in writing, as by any other act duly executed, &e.
The statute of July 2, 1822, contains a provision on this subject, substantially the same as the said provision in the statute of February 3, 1789.
It thus appears, that the provisions on this subject in the statutes of England and of Massachusetts, are almost precisely the same as in our statutes, and we are of opinion, that the construction upon these provisions in relation to married women in England and Massachusetts, are entirely correct. A married woman is not, by the common law, sui juris, but is sub potestate viri.
She is under a civil disqualification arising from want of free agency, and not from want of judgment, and it seems to us to be wholly incredible, that the legislature should have intended to give to a married woman the power of devising her lands, at her decease, while the power of disposing of them at her will is denied to her during her life. Her will of chattels may be made valid by the assent of her husband, because the gift is, in effect, his gift, and the property passes from him. Rut with respect to her real estate the case is different. Her lands at her decease go not to him, but to her heirs, and his assent to her will of real estate can give it no validity.
Decree of the court below reversed.
