Reed v. Blaisdell

| Superior Court of New Hampshire | Dec 15, 1844

Gilchrist, J.

The instrument which the appellant seeks to establish as the will of Caroline Blaisdell, was made by her during the lifetime of her husband ; but the evidence very clearly shows that he advised and consented to its being made and published as her will; there is no evidence that he ever afterward revoked his consent to that act; it also appears that she survived her husband ; and there is no evidence that during the period of her exemption from the disabilities of coverture, she herself ever sought to revoke or reconsider the act.

The will in its form is such as would be sufficient to pass real estate if the party executing it had been at the time seized of such, and competent in law to make an effectual devise of it.

The rights and disabilities as it regards this subject, pertaining to the state of coverture, are succinctly stated by Mr. Justice Blackstone. “ Among the Romans there was no distinction ; a mariied woman was as capable of bequeathing as a feme sole. But among us a married woman is not only utterly incapable of devising lands, being excepted out of the Statute of Wills 34 and 35 Her. 8, c. 5, but also she is incapable of making a testament of chattels, without the license of her husband. For all her personal chattels are absolutely his ; and he may dispose of her chattels real, or shall have them to himself if he survive*.her. It would be therefore extremely inconsistent to give her the power of defeating that provision of the law, by bequeathing those chattels to another. Net by her husband’s license she may make a testament, and the husband frequently upon marriage covenants with her friends to allow her that license. But such license is more properly his assent; for unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a will.”

In this State in Marston v. Norton, 5 N. H. 205, it was held, that a married woman could not in any case make a valid devise of real estate, although her husband at the time of the execution of the testamentary act, signed and sealed an instrument expressing his assent that she should devise her land. But Richardson, C. J., said that her will of her 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.”

The same is the doctrine of Osgood v. Breed, 12 Mass. 532, and the same reason is assigned.

The dicta in the two cases referred to, relate to the power of the wife in regard to chattels within the absolute control of the husband, and not to ehoses in action, or to property considered in equity to be hers. In the former ease the property is in him both in law and equity; in the latter it is either in the wife, or in others in trust for her, and has been generally recognized as a legitimate subject of the exercise of some kind of testamentary power on the part of the wife. Stat. 29 Car. 2, chap. 3, sec. 24, makes a reservation in favor of the husbands of married women who “ die intestate.” Rex v. Dr. Bettesworth, 2 Strange 1111-12.

It may not be necessary in the present case, to insist upon any such distinction with reference to the formal nature of the assent required to be given by the husband for the purpose of giving effect to the will of the wife, or with reference to the kind and degree of evidence necessary to establish such assent; but it may yet be pertinent to take notice, that the particular property upon which the testamentary paper was intended to act, was in fact the property of the wife herself, and in the event of her surviving him, which actually occurred, was absolutely hers as against his personal representatives. At least it so appears from all the evidence that is found to exist bearing upon the subject.

By the admissions of John Blaisdell himself the debt due from the two Beeds was hers in the beginning, as having come to her in some manner from her father; so that although the security stood in his name, he was in fact no more than a trustee for her, as he well might have been. And it is no matter whether this chose in action accrued to her before the marriage, as in Stanwood v. Stanwood, 17 Mass. 57, or afterward, as in Nash v. Nash, cited by the court in that case from 2 Mod. 133.

Indeed upon the authority of Christ’s Hospital v. Bugin, 2 Vernon 683, it might be held to be immaterial what the origin of the debt was, provided the husband saw fit to take the security in the name of the wife, and that in such a case it would survive to her upon his decease, there being no creditors who would be defrauded by such an arrangement.

The authorities contain some disquisition as to the evidence needful to prove the assent of the husband to the testamentary act of the wife ; and it appears that a covenant on the part of the husband that the wife shall so dispose of her property, in general, is not sufficient, Rex v. Bettesworth (Cullom’s case), 2 Strange 891, although it seems by that ease that it would have been sufficient, if it had appeared that the will which she had made was such an one as her husband had so agreed that she might make.

But in the present case the evidence is quite clear, that the husband both assented and advised to the making of a will that should dispose of the note of the Needs, and that when he knew that she had made a will, and saw it executed, he by tacit acquiescence confirms the act, so that no doubt can exist that the instrument set up as her will was made and executed with his consent, and is such a will as he consented to her making, unless the insertion of the clause with respect to the real estate shall appear to vitiate it.

It is not apparent that it can or ought to have any such effect. In Deane v. Littlefield, 1 Pick. 243, Parker, C. J., in delivering the opinion of the court says, that “At the common law, a will which was good to dispose of personal estate but not for real, might be set up for the former, though not for the latter.” And it appears from the authorities cited by counsel in the argument of that cause, that wills of this description were proved in the spiritual courts. Now the will of a married woman disposing of lands is in all cases merely void, as has been seen.

In addition to this, there was no land upon which it could'have been intended to operate; so that it was to every intent such a will as the husband consented to her making.

The conclusion therefore is, that the decree of the court of probate disallowing the instrument in question to he proved as the will of the decedent Caroline Blaisdell, must be reversed, and the same must be admitted to be proved as her will with respect to the personal property therein bequeathed. The ease must be remanded to that court for further proceedings in conformity with this decree.

Decree accordingly.