Will of Ward

70 Wis. 251 | Wis. | 1887

Cassoday, J.

The testatrix made her will while she was the wife of Spaulding. By it she gave her property to six of her children by a former marriage. After his death she married Ward. She never had any children by either of them. Hid such marriage to Ward revoke her will thus made? This is the only question presented which it is necessary to consider. The county court held that it did. The circuit held that it did not, and reversed the judgment.

After prohibiting the revocation of any will otherwise than by burning, tearing, canceling, or obliterating the same, or by some other writing, executed as prescribed, substantially as required by sec. 6, cb. 8, 29 Car. II. (3 Eng. Stats, at Large, 385), our statute adds: “ Excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” Sec. 2290, R. S. This section, with the above exception, first appeared in sec. 10, ch. 66, R. S. 1849, which went into effect January 1, 1850. “ The revocation implied by law,” thus excepted out from the operation of the prohibitory clause of the section by reason of such precaution, manifestly means such as had previously been implied at common law. At common law the marriage of a woman was a revocation of her will previously made. Forse’s Case, 2 Coke, 439; Hodsden v. Lloyd, 2 Brown, Ch. 534; Doe v. Staple, 2 Term R. 695. This was put upon the grounds of the husband’s marital rights, the ambulatory character of a will, and the disability of the wife. Thus Lord Chancellor Thuelow, after considering the rights of the husband over the property of his wife, said: “ It is extremely clear that no such will made by a feme covert can bind after the marriage, because it is contrary to the nature of the instrument, which must be ambulatory during the life of the testatrix; and as by marriage she disables herself from making any other will the instrument ceases to he of that sort, and must be void.” Hodsden v. Lloyd, supra.

But the common-law rule that marriage of a woman revoked her will previously made was not without exceptions. Thus, where her power of disposing of her separate property after marriage was preserved by an antenuptial agreement, her will previously made was not revoked by such marriage. 1 Sugd. Powers, 182-190; Wright v. Englefield, 1 Amb. 468; Rippon v. Dawding, 2 Amb. 565; Hick v. Beaumont, 6 Brown’s C. P. 152; Churchill v. Dibben, 2 Keny. pt. 2, p. 82; Logan v. Bell, 50 Eng. C. L. (1 Man., G. & S.), 872; Doe v. Bird, 2 Nev. & M. 679; Downes v. Timperon, 4 Russ. 334; Dillon v. Grace, 2 Schoales & L. 456; Braddish v. Gibbs, 3 Johns. Ch. 523; Barnes v. Irwin, 2 Dall. 199, 1 Teates, 221.

The power which at common law might thus be preserved to a married woman by marriage settlement to dispose of her property during coverture, has been expressly preserved ,to married women in this state by statute ever since February 1, 1850. Laws of 1850, ch. 44, secs. 1-3; ch. 95, R. S. 1858; secs. 2340-2343, R. S. This must be qualified to the ■extent of saying that she could not dispose of her property by last will and testament, without the consent of her husband, until March 23, 1859. Sec. 1, ch. 66, R. S. 1849; sec. 1, ch. 97, R. S. 1858; sec. 2, ch. 91, Laws of 1859. But since that time she has. had the absolute power of disposing of her property in that way without his consent, and even against his wish. Secs. 2277, 2281, R. S. The rights and powers thus secured to married women by the statutes remove every reason upon which the common-law rule of revocation by such subsequent marriage was based, and hence such rule by implication is removed by the same statutes. The reason for the rule having ceased to exist, the rule itself also ceased. This is in accordance with a well-settled maxim of the law. Regardless of that principle, it has been held in Massachusetts that the marriage of a woman revoked her will previously made, notwithstanding such statutes. Swan v. Hammond, 138 Mass. 45, 52 Am. Rep. 255; Blodgett v. Moore, 141 Mass. 75. Such ruling was based, apparently, upon the fact that the statute there, as here, prescribes the modes of revoking wills and recognizes revocation implied by law. But the old English statute cited also prescribed such inodes of revoking wills, without such express recognition. It is true, nevertheless, such revocations were implied notwithstanding, among other reasons, for those stated above. As observed, the statutes of this state thus removing the reasons, to that extent removed the rule. The fact that such rule at common law was based upon the husband’s marital rights, the ambulatory character of the will, and the disability of the wife, seems to be recognized in a later ease in Massachusetts, wherein it is, in effect, held that revocation-of a woman’s prior will by marriage was prevented by an antenuptial agreement barring such rights and removing such disability and preserving such powers. Osgood v. Bliss, 141 Mass. 474. To hold that marriage of itself revoked a former will of the wife, under the circumstances here presented, as above stated, when the next day after the marriage she had power to reinstate the same writing as her last will and testament, would seem to be absurd. The conclusions we have reached are supported by the great weight of authority of our sister states under similar statutes. In re Tuller’s Will, 79 Ill. 99; Noyes v. Southworth, 55 Mich. 173; Webb v. Jones, 36 N. J. Eq. 163; Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 329; Hoitt v. Hoitt, 63 N. H. 475; Morton v. Onion, 45 Vt. 145; In re Carey’s Estate, 49 Vt. 236.

See note to this case in 35 N. W. Rep. 731.— Rep.

"Whether, in view of our statutes making husband and wife heir to each other in the absence of children, marriage of itself would revoke a former will in favor of a stranger, as seems to have been held in an early Illinois case qualified in the above citation from that state, we are not here called upon by the facts to consider. We must hold that the common-law rule mentioned, when applied to the facts of this case, has by implication been abrogated by our statutes.

By the Court.— The judgment of the circuit court is affirmed.