56 Me. 300 | Me. | 1868
The single question, presented by this appeal, is whether a married woman can take upon herself the duty and trust of an executrix to a will in which she is named for that office, she being married at the time of the execution of the will, and her husband consenting to her thus acting.
Independently of any statute, the general rule of the English law is that any person may be an executor if mentally capable of executing its duties.
It seems to be universally conceded, in all the text books and in all the authorities, that coverture, in itself, is no in
But it is contended that, although this is the rule of the English common law, and was formerly the law of this country, it has been entirely changed or abrogated by our statutes, either directly or by necessary implication.
In the first place, it is said that by our statute, E. S., c. 64, § 5, it is required that "every executor shall give bond, with sureties,” and that a married woman cannot thus bind herself, and therefore cannot be an executrix. To this, it is answered, that by the statute of 1866, c. 52, a married woman may now execute such bond, and bind herself. It is also replied, that by a well established principle, where words are used, in a statute which necessarily include a class, and require certain acts to be done, that such requirement supersedes any exception or restriction before existing, and gives the power to do the prescribed act. Thus, where an infant gives a bond in a case of bastardy, or a married woman recognizes to prosecute an appeal taken by her, it has been held that the obligation in each case was binding. It was said by the Court, in McCall v. Parker, 13 Met., 372, that the Justice was authorized to require the accused to give a bond with sureties, and that, from the language of the statute and the nature of the subject, there was no reason to doubt that it was intended to include minors. Curtice v. Bethamly, 8 Allen, 336, where a married
It is analagous to the right of a married woman who is a trustee or executrix to make a will touching property held by her in a fiduciary character, although by the old common law, as a general principle, a married woman could not make a will. Jarman on Wills, 31; Holman v. Perry, 4 Met., 492.
Besides, it would hardly be a fiction of the law to invoke, if necessary, the old fashioned idea and doctrine, that the husband and wife are but one person in law, and that therefore the bond might be given by the husband with or without his wife.
It is said in 1 Williams on Ex’rs., 369, that " a feme covert may be an administrator. But she cannot take administration without the consent of her husband, inasmuch as, among other things, he is required to enter into the administration bond, which she is incapable of doing. Yet, if it is shown that her husband is absent or otherwise incompetent, a stranger may join in the security in his stead.” This clearly shows that it is no fatal objection against the appointment of a feme covert, that she could not give a bond binding her, and that her husband might enter into " the required bond.”
The question returns, whether, under our law, a married woman can be appointed as an executor. The answer to this question would seem to depend upou the answer to another, viz.,—is it forbidden? We have seen that the right existed at common law. Has it been abrogated ? It is provided by § 17, c. 64, R. S., that " when an unmarried woman, who is joint or sole executor or administrator, marries, her husband shall not exercise such trust in her right, but her
This section does not include the case under consideration by its terms. It is confined to the case of an "unmarried” woman, who was an executor when sole, and its object is to terminate that relation upon her marriage. It is, however, suggested that it indicates that the will of the Legislature is that no married woman shall hold that trust. If such was the intention, it seems a little singular that the Legislature did not say so in direct terms, as it did in relation to guardianship. "No married woman, during her coverture, shall be appointed guardian; and, if any female guardian is married, her authority as such shall cease, nor shall her husband be guardian in her right.” R. S., c. 67, § 16.
There seems to have been a designed omission of the general language used in the last quoted section, in the Act now in question. It would not be our proper province to supply it, even if we could see no good reason for the distinction. It may be that the section in relation to guardians was intended to apply only to guardians appointed by the Court, and not to testamentary guardians. It may be also suggested, with some plausibility, at least, that the law makers intended to allow a testator to designate an already married female friend, in whom he had confidence, and whose husband he knew and had no objection to, to be the executor of his will, and that such a designation should stand good. But, where' the female was unmarried at the time of the making of the will, or at the death of the testator, and she afterwards marries, a new relation, not known to the testator, arises, and a new party is introduced into the trust. The law says, that as it was a feme sole that was originally designated by the will, a feme covert, with her new baron, shall no longer act.
The history of the legislation on this subject may throw
This case clearly shows that the statute is to' be confined to the cases included in its terms, — and that until the new provision as to sole executor, made in 1836, a married woman could be an executrix, even when she had been appointed as such when unmarried. When the new provision ' was included, it simply excluded the unmarried sole executrix, who afterwards married, in the same manner and to the same extent that it before excluded her from acting longer, when she was joined with others in the trust. But neither the original statute nor the amended one reaches the
This seems to be the view of Mr. Redfield. After referring to the fact that, in most of the States of the Union, when a feme sole, who is an executrix, marries, her power ceases from that time, he adds : — " But, where no statutory provisions exist upon the subject, the marriage of a feme sole will not probably have the effect to terminate the office.” 2 Redf. on Wills, 60.
This was so determined also in Barber v. Bush, 7 Mass., 510, where it was held that when a feme sole, who was sole executrix, marries, she retains her office and her husband becomes joined with her. This decision probably led to the amendment made in 1836, which was intended to change the statute in this respect only. There seems to be no direct provision which declares that no married woman shall be an executor of a will. She may be such by the common law. We have no right to say more than the Legislature has seen fit to say.
The tendency of legislation, and apparently of public sentiment, is not in the line of restriction upon " woman’s rights.” But, if legislation in that direction is desired, it must be sought from the proper department.
Appeal sustained. — Judgment of the Probate
Court reversed, and case remanded to that Court for further proceedings.